# Nunez v. Noeth

> District Court, E.D. New York · February 21, 2024

URL: https://www.frixlaw.com/law-library/cases/10311268

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 21, 2024
- **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/10311268

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------X

Marvin Siciliano Nuñez,

Petitioner, MEMORANDUM & ORDER

- against - No. 20-cv-3034 (KAM)

Kevin McCarthy,1

Respondent.

-----------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

Marvin Siciliano Nuñez, proceeding pro se, petitions for a
writ of habeas corpus, claiming his state custody for burglary,
committing a criminal sexual act, attempted rape, and criminal
obstruction of breathing violates his federal constitutional
rights. He challenges the grand jury proceedings leading to his
indictment, the State’s failure to disclose evidence, an
evidentiary ruling, the sufficiency and weight of the evidence,
the validity of his confession, and his sentence. For the
reasons below, the Court respectfully denies the Petition.

1 The proper respondent in a federal habeas action is he warden or
superintendent of the facility where the petitioner is held. Green v. Lee,
964 F. Supp. 2d 237, 253 (E.D.N.Y. 2013). The original respondent in this
action was Joseph Noeth, the Superintendent of Attica Correctional Facility
when the action was filed. The Court deems the Petition amended to change
the respondent to the Superintendent of Elmira Correctional Facility, where
Siciliano Nuñez is currently held. See Pellis v. Wright, No. 19-cv-149
(EAW), 2022 WL 3587755, at *4 n.4 (W.D.N.Y. Aug. 22, 2022). The Court
retains subject-matter jurisdiction because Siciliano Nuñez was convicted and
sentenced in the Eastern District of New York. See 28 U.S.C. § 2241(d).
BACKGROUND
I. Factual Background
Early in the morning on August 5, 2016, emergency medical
personnel found Marvin Siciliano Nuñez passed out, apparently
from alcohol, outside a convenience store and transported him to

Southampton Hospital. (ECF No. 10-20, June 12, 2017, Trial Tr.
19:24–20:20.) After he was treated for intoxication, found to
be “alert and oriented,” and discharged around 7:00 that
morning, he entered a house a few blocks away through an
unlocked back door and began stealing jewelry and other items
inside. (Id. 20:10–20, 37:5–11; ECF No. 10-3, Resp. to Disc.
Demand, at 15–16; ECF No. 10-19, June 9, 2017, Trial Tr. 108:13–
111:17.)
When Siciliano Nuñez found the homeowners’ teenage daughter
sleeping in a downstairs bedroom, he threatened her with a large
wooden object,2 threw her to her knees, tore off her shirt, and

repeatedly shoved his penis in her mouth. (ECF No. 10-16,
June 6, 2017, Trial Tr. 69:12–85:13.) He then threw her onto
the bed, choked her, and tore off her underwear while he tried
to vaginally penetrate her. (Id. 85:14–91:25.) The victim
escaped the house and ran naked into the street screaming for

2 Siciliano Nuñez stated in his written confession that the object was a
skateboard, (Resp. to Disc. Demand, at 15–16), but the victim and three
eyewitnesses testified it was a bat, (ECF No. 10-16, June 6, 2017, Trial Tr.
70:16–21; ECF No. 10-22, June 5, 2017, Trial Tr. 79:3–9, 132:19–21, 149:3–
11).
help. (Id. 92:1–94:2.) Siciliano Nuñez chased her outside but
fled after seeing bystanders rush to help the victim. (Id.
93:20–94:9; ECF No. 10-22, June 5, 2017, Trial Tr. 74:7–82:5,

130:15–134:19, 149:3–153:24.)
Responding officers apprehended Siciliano Nuñez nearby and
brought him to a show-up, where the victim identified him. (ECF
No. 10-18, June 8, 2017, Trial Tr. 45:13–16, 13:14–14:10.) The
officers then brought him to the police station. (Id. 53:5–8.)
He sat unrestrained in an interview room while an officer read
him his Miranda rights and another officer translated the first
officer’s words into in Spanish. (Id. 129:1–130:9, 162:23–
167:17, 169:6–10.) With the translating officer’s help,
Siciliano Nuñez initialed a form waiving his rights, answered
the officers’ questions, and signed a written confession (after
it was translated for him) around 1:30 in the afternoon. (Id.
162:23–175:14; see Resp. to Disc. Demand at 15–16.) A grand

jury sitting in Suffolk County later indicted Siciliano Nuñez
for burglary, committing a criminal sexual act, attempted rape,
obstruction of breathing, and resisting arrest. (Resp. to Disc.
Demand at 6–10.)
II. Trial
Siciliano Nuñez stood trial before a jury in the Suffolk
County Supreme Court. Before trial, Siciliano Nuñez moved to
suppress his confession, arguing he was intoxicated at the time.
(ECF No. 10-15, Mar. 29, 2017, Hr’g Tr. 4:20–24.) The trial
court denied the motion after one of the arresting officers
testified that Siciliano Nuñez did not appear or act intoxicated

and did not smell of alcohol. (ECF No. 10-12, Appellant’s Br. &
App’x, at A10; see ECF No. 10-14, Apr. 11, 2017, Hr’g Tr. 26:21–
23, 27:9–11.) On the second day of trial, however, the defense
moved again to suppress Siciliano Nuñez’s confession and also
moved for a mistrial on the ground that the State waited until
after the suppression hearing to disclose a suicide prevention
screening form completed by the arresting officer the day of the
arrest indicating that Siciliano Nuñez was impaired by alcohol.
(June 6, 2017, Trial Tr. 170:17–174:25.)
The court vacated its prior voluntariness finding and held
a second hearing, where the defense cross-examined the arresting
officer using the form. (ECF No. 10-17, June 7, 2017, Trial Tr.

66:6–10; June 8, 2017, Trial Tr. 69:1–80:5.) The arresting
officer testified that he indicated on the form that Siciliano
Nuñez was intoxicated due to Siciliano Nuñez’s hospitalization
for intoxication earlier in the morning, not because he actually
thought Siciliano Nuñez was intoxicated while interacting with
him. (June 8, 2017, Trial Tr. 35:21–36:11.) The court again
found Siciliano Nuñez’s confession voluntary. (June 9, 2017,
Trial Tr. 19:4–15.) It declined to declare a mistrial but
sanctioned the State by instructing the jury about the State’s
initial failure to disclose the arresting officer’s form. (Id.
42:15–24.) The court gave the instruction before the officer
testified and again after summations. (Id. 79:7–82:17; ECF

No. 10-21, June 13, 2017, Trial Tr. 137:11–140:10.)
During the two-week trial, the jury heard testimony from
the victim, her mother, three bystanders who saw Siciliano Nuñez
chase the victim into the street, the officers who arrested and
interviewed Siciliano Nuñez, the nurse who treated the victim
after the attack, and the nurse who treated Siciliano Nuñez
earlier in the morning for intoxication. (See generally ECF
Nos. 10-16 through 10-22.) Before summations, the defense moved
to dismiss the indictment in its entirety, arguing the evidence
was insufficient to support a conviction. (June 12, 2017, Trial
Tr. 177:14–18.) The defense made specific arguments as to the
charge for resisting arrest and the classification of the

burglary charges as sexually motivated felonies but as to the
other charges argued only that the State had “not presented a
legally sufficient case.” (Id. 156:14–164:5.) The trial court
dismissed the charge for resisting arrest but otherwise denied
the motion to dismiss the entire indictment. (Id. 181:1–182:4;
ECF No 10-21, June 13, 2017, Trial Tr. 5:17–19.)
The jury returned a verdict finding Siciliano Nuñez guilty
of burglary, a criminal sexual act, attempted rape, and
obstruction of breathing; however, it declined to find the
burglary charges “sexually motivated.” (ECF No. 10-13, June 14,
2017, Verdict Tr. 10:23–16:4.) The trial court imposed an
aggregate prison sentence of twenty-one years, running the

sentences concurrently rather than consecutively. (ECF
No. 10-8, Aug. 2, 2017, Sent’g Hr’g Tr. 26:2–27:5.) It declined
to impose the twenty-five year maximum sentence available for
burglary or a criminal sexual act. (See id. 14:23–15:6); N.Y.
Penal Law § 70.00(2)(b); N.Y. Penal Law § 140.30; N.Y. Penal Law
§ 130.50.
III. Appeal
The Appellate Division affirmed the conviction and
sentence. People v. Siciliano Nuñez, 100 N.Y.S.3d 309 (2d Dep’t
2019). It both rejected as unpreserved Siciliano Nuñez’s
arguments that the grand jury proceedings were defective, that
the trial court allowed the State to elicit inadmissible hearsay
during the direct examination of the victim’s mother, and that

there was insufficient evidence to convict him; however, it also
addressed and rejected those claims on the merits. Id. at 311–
13. Regarding the State’s late disclosure of the suicide
prevention screening form, the Appellate Division determined
that the trial court acted appropriately in holding a new
suppression hearing instead of declaring a mistrial and that
there was no reasonable possibility earlier disclosure might
have led to the jury to reach a different verdict. Id. at 312.
The Appellate Division also concluded that the evidence
presented at the suppression hearing failed to establish that
Siciliano Nuñez was so intoxicated at the time of his interview
as to render his waiver of rights involuntary. Id. Finally,

the Appellate Division determined that the trial court’s
sentence was not excessive. Id. at 313.
The New York State Court of Appeals denied leave to appeal
on July 17, 2019. People v. Siciliano Nuñez, 130 N.E.3d 1305
(N.Y. 2019). Siciliano Nuñez timely filed the instant Petition
on July 4, 2020. (See ECF No. 1, Pet. Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by Person in State Custody.) At that
time, he had not collaterally challenged his conviction in state
court or sought review in the Supreme Court of the United
States. (Id. at 2–3.)3
LEGAL STANDARD
A petition for a writ of habeas corpus under 28 U.S.C.

§ 2254 is the vehicle by which a state prisoner obtains federal
judicial review of his or her state custody. Cook v. N.Y. State
Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003). The court may
issue the writ only if it finds that the petitioner is in
custody in violation of federal law. 28 U.S.C. § 2254(a). Any
claim for which the petitioner seeks habeas relief must have

3 Because the Petition has inserts without page numbers that disrupt the
document’s internal pagination, the Court cites the Petition according to the
page numbers assigned by the Court’s electronic case filing system.
been fairly presented for review and exhausted in state court.
28 U.S.C. § 2254(b).
Respect for judicial federalism requires that a federal

habeas court refrain from resurrecting a claim the petitioner
“procedurally defaulted” in state court. Davila v. Davis,
582 U.S. 521, 527–28 (2017). Procedural default occurs when the
state court clearly and expressly relied on a state procedural
rule to dispose of the petitioner’s claim, regardless of whether
the state court also addressed the merits of the claim. Garner
v. Lee, 908 F.3d 845, 859 (2d Cir. 2018). The petitioner may
raise a procedurally defaulted claim in a federal habeas
proceeding only by showing either (1) good cause for the default
and resulting prejudice or (2) that he or she is actually
innocent. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Gomez v.
United States, 87 F.4th 100, 107 (2d Cir. 2023).

If the state court adjudicated the petitioner’s claim on
the merits, the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) requires the habeas court to give the state court’s
decision great deference. McCray v. Capra, 45 F.4th 634, 640
(2d Cir. 2022). The state court need not explain its reasoning
for its decision to be considered “on the merits.” Johnson v.
Williams, 568 U.S. 289, 298 (2013). If the petitioner presented
the claim to the state court and the state court denied relief,
the habeas court may presume the state court adjudicated the
claim on the merits absent any contrary indication or state law
principle. Id.
Under AEDPA, a state court decision on the merits must

stand unless it was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or
(2) “based on an unreasonable determination of the facts in
light of the evidence presented” in the state court. 28 U.S.C.
§ 2254(d). “Clearly established” federal law means a holding,
as opposed to dicta, of a Supreme Court decision that existed at
the time of the relevant state court decision. McCray, 45 F.4th
at 640. The habeas court may not use Second Circuit precedents
to “refine or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule” that the Supreme Court
“has not announced.” Jackson v. Conway, 763 F.3d 115, 134
(2d Cir. 2014) (quoting Marshall v. Rodgers, 569 U.S. 58, 64

(2013)).
A state court decision is “contrary to” clearly established
federal law if it contradicts a Supreme Court decision on a
legal question or decides a case differently from how the
Supreme Court decided a case with materially identical facts.
McCray, 45 F.4th at 640. A state court decision “involves an
unreasonable application of” clearly established federal law if
the state court identifies the correct legal rule from the
applicable Supreme Court decision but unreasonably applies it to
the facts of the petitioner’s case. See id.
When a habeas petitioner proceeds pro se, the court holds

the petition to less rigorous standards than it holds filings by
counseled parties. Licausi v. Griffin, 460 F. Supp. 3d 242, 260
(E.D.N.Y. 2020). The court must liberally construe the petition
to raise the strongest arguments it suggests. Id. Still, pro
se petitioners are not exempt from the applicable procedural and
substantive rules. Banner v. Royce, 525 F. Supp. 3d 417, 418
(E.D.N.Y. 2021).4
DISCUSSION
In resolving Siciliano Nuñez’s Petition, the Court reviews
the Appellate Division’s decision, which was the last reasoned
state court decision to address all asserted grounds for federal
habeas relief after the New York State Court of Appeals denied
leave to appeal without comment. See Royster v. Ercole,

No. 06-cv-12942 (SAS) (JCF), 2008 WL 542505, at *6 (S.D.N.Y.
Feb. 29, 2008) (explaining that when the New York State Court of
Appeals denies leave to appeal without comment, the federal
habeas court “look[s] through” that decision to “the decision of

4 Relevant here, a habeas petitioner may not raise a claim for the first time
in a reply brief. Morrison v. Brown, No. 11-cv-3366 (KAM), 2019 WL 267190,
at *15 (E.D.N.Y. Jan. 18, 2019). The Court has considered all of Siciliano
Nuñez’s filings to the extent they address claims raised in the Petition;
however, to the extent Siciliano Nuñez’s reply brief, (ECF No. 14, Mem. of
Law), seeks to raise any new claims, the Court declines to consider them.
the Appellate Division”), R&R adopted, ECF No. 17 (S.D.N.Y.
Apr. 22, 2008).
I. Grand Jury Proceedings
Siciliano Nuñez first challenges the validity of the grand

jury proceedings that led to his indictment, arguing that the
proceedings were defective because the State failed to inform
the grand jury that he might have been too drunk to have formed
the requisite intent to commit a crime. (ECF No. 1, Pet. Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by Person in State
Custody (“Pet.”), at 5.) Siciliano Nuñez raised this claim in
his appeal, and the Appellate Division rejected it as
unpreserved and also rejected it on the merits. People v.
Siciliano Nuñez, 100 N.Y.S.3d 309, 311 (2d Dep’t 2019).
The record lacks enough information for the Court to
determine whether Siciliano Nuñez procedurally defaulted this
claim. In finding the grand jury challenge unpreserved, the

Appellate Division cited New York’s state law requirement that
an objection be contemporaneous and specific to preserve a claim
of error for appeal. Id. (citing N.Y. Crim. Proc. Law
§ 470.05(2)). Before trial, Siciliano Nuñez had moved to
dismiss the indictment on the ground that the State presented
insufficient evidence to the grand jury. (ECF No. 10-2,
Sept. 21, 2016, Order.) The record contains a copy of the order
but not the motion, so the Court cannot tell whether the motion
was specific enough regarding the intoxication issue to preserve
this claim of error for appeal. Thus, the Court also cannot
determine whether the Appellate Division properly rejected the

claim as unpreserved.
Regardless, Siciliano Nuñez cannot prevail on this ground.
A federal habeas petitioner generally may not obtain relief
based on a flaw in a state grand jury proceeding. Lopez v.
Riley, 865 F.2d 30, 32 (2d Cir. 1989); Occhione v. Capra,
113 F. Supp. 3d 611, 631 (E.D.N.Y. 2015). This is because the
Fifth Amendment right to indictment by grand jury in federal
prosecutions does not apply to state prosecutions. See Hurtado
v. California, 110 U.S. 516, 538 (1884); United States v. Lee,
833 F.3d 56, 69 (2d Cir. 2016). Accordingly, Siciliano Nuñez’s
grand jury claim does not concern a federal right and cannot
support federal habeas relief.
II. Siciliano Nuñez’s Confession

Siciliano Nuñez raises two related claims regarding his
written confession and the State’s late disclosure of the
arresting officer’s suicide prevention screening form. First,
he claims the trial court erred by holding a second suppression
hearing instead of declaring a mistrial when it learned the
State failed to disclose the form in time for the first
suppression hearing. (Pet. at 6.) Second, he claims the trial
court erred by denying his motion to suppress, arguing that the
form contradicted the arresting officer’s testimony that
Siciliano Nuñez was not drunk at the time of his confession.
(Id. at 11.)
A. Mistrial Ruling

The trial court concluded that the State committed a
Rosario violation and a Brady violation by tardily disclosing
the suicide prevention screening form; however, it determined
that the proper remedy was to hold a second suppression hearing
rather than declare a mistrial. (ECF No. 10-19, June 9, 2017,
Trial Tr. 42:4–18.) Rosario requires the State to disclose any
written statement by a person that the State intends to call as
a witness at trial. People v. Rosario, 173 N.E.2d 881, 884
(N.Y. 1961). Brady requires the prosecution team to disclose
any material exculpatory evidence. Brady v. Maryland, 373 U.S.
83, 87 (1963). The Appellate Division rejected Siciliano
Nuñez’s Rosario and Brady claims on the merits. Siciliano
Nuñez, 100 N.Y.S.3d at 312.

To the extent Siciliano Nuñez seeks to continue advancing
his Rosario claim at this stage, he cannot prevail because
federal habeas relief is available only for violations of
federal law and Rosario claims arise under state law. See
Enoksen v. Squires, 532 F. Supp. 3d 75, 93 n.14 (E.D.N.Y. 2021).
To the extent he presses a Brady claim, however, the Court
reviews the Appellate Division’s decision with AEDPA deference.
The Appellate Division did not contradict or unreasonably
apply Brady in determining that the trial court properly denied
Siciliano Nuñez’s application for a mistrial. To prevail on a
Brady claim, the defendant must show a reasonable probability

that the result of the proceeding would have been different had
the evidence been disclosed. Smith v. Cain, 565 U.S. 73, 75
(2012). Siciliano Nuñez cannot make this showing with respect
to the suppression hearing. No Supreme Court precedent holds
that Brady applies to pre-trial suppression hearings; the
circuits are divided on that issue. United States v. White,
489 F. Supp. 3d 274, 279–80 (S.D.N.Y. 2020) (explaining that the
Fifth and Ninth Circuits apply Brady to the suppression context,
the D.C. and Sixth Circuits have “expressed doubts,” and the
Second Circuit has yet to weigh in). Regardless, the trial
court’s decision to vacate its prior voluntariness finding and

hold a second suppression hearing, where the defense extensively
cross-examined the arresting officer using the suicide
prevention screening form, eliminated any defect in the first
suppression hearing caused by the late disclosure.
Siciliano Nuñez also cannot show a reasonable probability
that the result of his trial would have been different but for
the late disclosure. Although Brady requires the disclosure of
exculpatory evidence, it does not require that the disclosure be
made before trial. Floyd v. Rosen, No. 21-cv-1668 (KMK),
2022 WL 1451405, at *13 n.6 (S.D.N.Y. May 9, 2022). To the
contrary, when the issue is late disclosure rather than non-
disclosure, a new trial is required only if the defendant was
deprived of a meaningful opportunity to use the evidence. Mosby
v. O’Meara, No. 12-cv-1543 (FJS), 2015 WL 4871803, at *7

(N.D.N.Y. Aug. 13, 2015). Here, the Appellate Division reasoned
that the form “was provided during trial in sufficient time for
defense counsel to utilize it to cross-examine the subject
witness as to any inconsistency between his testimony and his
entries on the form.” Siciliano Nuñez, 100 N.Y.S.3d at 312
(citations omitted). Thus, the Appellate Division concluded,
there was “no reasonable possibility that earlier disclosure
might have led to a different outcome at trial.” Id. (citations
omitted). That was a reasonable application of Brady. See
Ocasio v. Artuz, No. 98-cv-7925 (JG), 2002 WL 1159892, at *13
(E.D.N.Y. May 24, 2002) (finding no Brady violation where State

disclosed officer’s notes, which contained exculpatory material,
just before officer testified at trial). Accordingly, Siciliano
Nuñez may not obtain habeas relief on his Brady claim.
B. Suppression Ruling
Siciliano Nuñez next claims that the trial court erred by
failing to suppress his written confession, arguing that he was
too intoxicated to have waived his Miranda rights before signing
it. (Pet. at 11.) The Appellate Court rejected this claim,
agreeing with the trial court that Siciliano Nuñez “knowingly,
intelligently, and voluntarily waived his . . . rights.”
Siciliano Nuñez, 100 N.Y.S.3d at 312 (citations omitted). Under
Miranda v. Arizona, 384 U.S. 436 (1966), a law enforcement

officer must advise a suspect of his or her privilege against
self-incrimination and right to counsel before initiating a
custodial interrogation. The ordinary remedy for a Miranda
violation is suppression of the statements made during the
interrogation. See Vega v. Tekoh, 597 U.S. 134, 151 (2022). A
suspect’s waiver of his or her Miranda rights is effective only
if it is knowing and voluntary under a totality of the
circumstances. Berghuis v. Thompkins, 560 U.S. 370, 382–83
(2010).
The Appellate Division did not contradict or unreasonably
apply Miranda in finding Siciliano Nuñez’s waiver knowing and
voluntary. The validity of a Miranda waiver depends on the

totality of the circumstances, and a defendant’s intoxication is
only one circumstance the court must consider. Arevalo v.
Artus, 104 F. Supp. 3d 257, 268 (E.D.N.Y. 2015). An intoxicated
defendant may waive his or her Miranda rights so long as he or
she appreciated the nature of the waiver. Id. Here, the
Appellate Division affirmed the trial court’s explicit finding
that Siciliano Nuñez’s waiver was knowing and voluntary under
the totality of the circumstances despite his asserted
intoxication. Siciliano Nuñez, 100 N.Y.S.3d at 312; (see
June 9, 2017, Trial Tr. 14:10–19:15).
The Appellate Division’s ruling also was not based on an

unreasonable determination of the facts in light of the evidence
presented to the trial court. The trial court made factual
findings regarding the circumstances of Siciliano Nuñez’s
Miranda waiver and confession, which this Court must presume are
correct. See 28 U.S.C. § 2254(e)(1); Sorto v. Herbert,
364 F. Supp. 2d 240, 242 (E.D.N.Y. 2004). As the trial court
found, Siciliano Nuñez was unrestrained in the interview room
and appeared calm with no signs of impairment or intoxication.
(June 9, 2017, Trial Tr. 8:3–8.) He was given a Miranda waiver
form printed in both English and Spanish, which was also read to
him out loud in Spanish. (Id. 8:9–9:5.) After each right was
read to him, he verbally waived it and then initialed the
corresponding written right on the waiver form. (Id. 9:6–11:6.)

He never requested that the officers stop questioning him and
never requested the presence of an attorney. (Id. 13:16–18.)
After answering verbal questions, which were translated into
Spanish, he reviewed a two-page written statement that was also
translated to him, declined an opportunity to make changes, and
signed each page. (Id. 13:19–25.)
The trial court found that the only pieces of evidence
suggesting Siciliano Nuñez might have been intoxicated at the
police station were the booking from and suicide prevention
screening form completed by the arresting officer. (Id. 16:10–
17:3.) The trial court found these forms were explained and

rebutted by the arresting officer’s testimony that he was only
acknowledging the fact Siciliano Nuñez had been admitted to and
discharged from the hospital earlier that morning and was not
stating his own opinions about Siciliano Nuñez’s present state.
(Id. 18:1–22.) The trial court found the forms further rebutted
by testimony from the interviewing officer and translating
officer, which the trial court credited, that Siciliano Nuñez
did not smell of alcohol or appear intoxicated. (Id. 17:4–8.)
Finally, the trial court found the forms rebutted by video
footage of Siciliano Nuñez from the day of his confession
descending the stairs at the police station and showing no sign
of any inability to sit, stand, or walk. (Id. 17:9–25.)

The totality of the circumstances reflected in this factual
record shows that Siciliano Nuñez was provided his Miranda
rights in his native language, understood them, and waived them
verbally and in writing. The hearing court was shown some
evidence Siciliano Nuñez may have been intoxicated at the time,
but it found that evidence outweighed by other evidence that he
was not. AEDPA requires the Court to defer to the state courts’
findings absent clear and convincing evidence to the contrary,
28 U.S.C. § 2254(e)(1), and Siciliano Nuñez has not presented
such evidence. Given this record, the Appellate Division’s
determination that Siciliano Nuñez knowingly and voluntarily
waived his Miranda rights was reasonable. See Arevalo,

104 F. Supp. 3d at 269 (denying habeas relief on claim of
invalid Miranda waiver due to intoxication where petitioner was
read his rights translated into Spanish and signed a waiver
form, and evidence did not show petitioner was too intoxicated
to understand waiver); Oakes v. Conway, No. 10-cv-318 (MAT),
2011 WL 3236201, at *6 (W.D.N.Y. July 28, 2011) (same, where
petitioner “appeared to be coherent, responsive to questions,
and showed no signs of slurred speech” and “never indicated to
the police that he was having difficulty understanding the
conversation or functioning because of intoxication”); Bruno v.
Cunningham, No. 03-cv-937 (MBM), 2004 WL 2290503, at *9–10
(S.D.N.Y. Oct. 8, 2004) (same, where petitioner seemed

“confused” before answering some questions but did not slur his
speech or smell of alcohol). Accordingly, Siciliano Nuñez
cannot obtain habeas relief based on his Miranda claim.
III. Victim’s Mother’s Testimony
Siciliano Nuñez next challenges the admission of hearsay
testimony during the victim’s mother’s direct examination.
(Pet. at 8.) At trial, the victim’s mother testified about her
phone call with the victim and a neighbor after the attack.
(ECF No. 10-16, June 6, 2017, Trial Tr. 23:12–28:16.) On
appeal, Siciliano Nuñez argued this testimony should have been
excluded as inadmissible hearsay. (ECF No. 10-12, Appellant’s
Br. & App’x, at 25 (citing June 6, 2017, Trial Tr. pp. 25–28).)

Because the portion of the Petition concerning the victim’s
mother’s testimony quotes his appellate brief nearly verbatim,
the Court presumes Siciliano Nuñez challenges the same testimony
here.
This claim is procedurally defaulted. On direct appeal,
the Appellate Division found the claim unpreserved for appellate
review based on New York’s state law contemporaneous and
specific objection rule. Siciliano Nuñez, 100 N.Y.S.3d at 312
(citing N.Y. Crim. Proc. Law § 470.05(2)). Because Siciliano
Nuñez’s trial attorney never objected to the testimony at issue,
(see June 6, 2017, Trial Tr. 23:12–28:16), the Appellate
Division properly applied the contemporaneous and specific
objection rule in rejecting this claim, see Minigan v. Donnelly,

No. 01-cv-26 (RJA) (VEB), 2007 WL 542137, at *9 (W.D.N.Y.
Feb. 16, 2007) (finding claim procedurally defaulted under N.Y.
Crim. Proc. Law § 470.05(2) where petitioner failed to object to
alleged hearsay testimony at trial), R&R adopted, 2007 WL 981762
(W.D.N.Y. Mar. 30, 2007). Further, the Appellate Division’s
ruling operates as a procedural bar to federal habeas relief
even though the Appellate Division went on to address and reject
the claim on the merits. See Carey v. Connell, No. 10-cv-3873
(DLC), 2012 WL 37084, at *4 n.1 (S.D.N.Y. Jan. 6, 2012)
(explaining that a state court’s rejection of a claim on both
procedural and substantive grounds invokes a procedural bar if

phrased in the conjunctive rather than in the disjunctive).
Because Siciliano Nuñez has not argued that there was good cause
for or prejudice resulting from the procedural default, nor has
he established that he is actually innocent, his hearsay claim
cannot support habeas relief.
IV. Sufficiency of the Evidence
Siciliano Nuñez next claims that the State failed to prove
all charges beyond a reasonable doubt and that his “convictions
were against the weight of the evidence.” (Pet. at 9–10.)
Specifically, he argues there was insufficient evidence
presented at trial to establish that he possessed a weapon while
he committed his crimes. (Id.) The Court construes this claim
as a legal sufficiency challenge because a weight of the

evidence claim is based on state law and not cognizable in a
federal habeas action. See Medina v. Gonyea, 111 F. Supp. 3d
225, 232–33 (E.D.N.Y. 2015).
The Appellate Division rejected this claim as unpreserved
and also rejected it on the merits. Siciliano Nuñez,
100 N.Y.S.3d at 313. In rejecting the claim as unpreserved, the
Appellate Division relied on New York’s contemporaneous and
specific objection rule as well as state court precedent holding
that motions to dismiss charges at the close of evidence must be
directed at specific evidentiary deficiencies and that “general
motions” fail to preserve legal sufficiency challenges for
appeal. Id. (citing N.Y. Crim. Proc. Law § 470.05(2); People v.
Hawkins, 900 N.E.2d 946, 950–51 (N.Y. 2008)).

Siciliano Nuñez’s legal sufficiency claim is procedurally
defaulted. At trial, Siciliano Nuñez moved to dismiss all the
charges against him but specifically attacked only the charge
for resisting arrest and the classification of the burglary
charges as sexually motivated felonies. (See ECF No. 10-20,
June 12, 2017, Trial Tr. 156:14–164:5.) Siciliano Nuñez made
only a general motion to dismiss the other charges. (Id. 164:2–
5 (“And to the remaining counts obviously we argue that the
People have not presented a legally sufficient case.”).) The
trial court dismissed the resisting arrest charge before

submitting the case to the jury. (ECF No. 10-21, June 13, 2017,
Trial Tr. 5:17–19.) After deliberating, the jury convicted
Siciliano Nuñez of both burglary and committing a criminal
sexual act but acquitted him of committing burglary as a
“sexually motivated felony.” (See ECF No. 10-13, June 14, 2017,
Verdict Tr. 11:6–12:2.) Thus, the only charges covered by
Siciliano Nuñez’s legal sufficiency claim by the time of his
appeal were charges to which he only generally objected in his
motion to dismiss at the close of evidence at trial.
The Appellate Division properly applied state court
precedent in finding that Siciliano Nuñez’s one-sentence,
perfunctory motion to dismiss failed to preserve a legal

sufficiency challenge for appeal. As other courts in this
circuit have found, legal sufficiency claims are procedurally
defaulted where the Appellate Division finds them unpreserved
based on the state court precedent that the Appellate Division
relied on here. See, e.g., Hill v. Lee, No. 11-cv-640 (ER),
2013 WL 3227641, at *5 (S.D.N.Y. June 25, 2013) (citing Hawkins,
900 N.E.2d at 950). As with Siciliano Nuñez’s hearsay claim,
the Appellate Division’s decision to discuss the merits does not
remove the procedural default. See Carey, 2012 WL 37084, at *4
n.1. Because Siciliano Nuñez has not argued that there was good
cause for or prejudice resulting from the procedural default,
nor has he established that he is actually innocent, his legal

sufficiency claim cannot support habeas relief.
Siciliano Nuñez also raises another legal sufficiency
argument as a separate ground for relief, asserting that the
nurse who examined the victim testified there was no physical
evidence the victim had been assaulted or that her breathing or
circulation was obstructed. (See Pet. at 12; ECF No. 15,
Translation, at 2.) He explains that although his attorney did
not make this argument in his appeal, he raises it now because
he believes it is an important point. (Pet. at 13; Translation
at 2.) This physical evidence argument is not a separate ground
for habeas relief but rather elaboration on the same legal
sufficiency claim that Siciliano Nuñez procedurally defaulted in
the Appellate Division. See Edwards v. Sup’t, Southport C.F.,

991 F. Supp. 2d 348, 372 n.12 (E.D.N.Y. 2013). Thus, it also
cannot support habeas relief.
V. Sentence
Siciliano Nuñez’s final claim is that the trial court
imposed an excessive prison sentence. (Pet. at 12.) The
Appellate Division rejected this claim on the merits. Siciliano
Nuñez, 100 N.Y.S.3d at 313. The Eighth Amendment’s prohibition
against “cruel and unusual” punishments in federal prosecutions,
see U.S. Const. amend. VIII, is an essential component of due
process and thus applies in state prosecutions through the
Fourteenth Amendment’s Due Process Clause, see U.S. Const.
amend. XIV, § 1; Robinson v. California, 370 U.S. 660, 667

(1962). The Supreme Court has held that a prison sentence can
be cruel and unusual if it is “grossly disproportionate” to the
crime. Ewing v. California, 538 U.S. 11, 30–31 (2003)
(plurality opinion).
The Appellate Division did not contradict or unreasonably
apply clearly established federal law in rejecting Siciliano
Nuñez’s excessive sentence claim. A state court’s prison
sentence that falls within the statutory range set by state law
is generally not grossly disproportionate. See White v. Keane,
969 F.2d 1381, 1383 (2d Cir. 1992); Constant v. Martuscello,
119 F. Supp. 3d 87, 139 (E.D.N.Y. 2015). Here, Siciliano

Nuñez’s convictions included burglary in the first degree and
committing a criminal sexual act in the first degree. (June 14,
2017, Verdict Tr. 10:23–16:4.) New York state law deemed each
of these crimes a class B felony at the time of Siciliano
Nuñez’s sentencing. See N.Y. Penal Law §§ 140.30, 130.50. The
statutorily authorized range for a class B felony was twenty-
five years. See N.Y. Penal Law § 70.00(2)(b). Siciliano
Nuñez’s twenty-one-year aggregate prison sentence thus cannot
support federal habeas relief.
CONCLUSION
The Court respectfully denies Siciliano Nuñez’s Petition in
its entirety and dismisses this action with prejudice.
The Clerk of Court is respectfully requested to amend the

caption to reflect that Kevin McCarthy (the Superintendent of
Elmira Correctional Facility) is the respondent, enter judgment
in favor of McCarthy, serve a copy of this Memorandum and Order
and the Judgment on Siciliano Nuñez, note service on the docket,
and close this case.
Because Siciliano Nuñez has not made a substantial showing
of the denial of a constitutional right, a certificate of
appealability shall not issue. See 28 U.S.C. § 2253(c);
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); Rules Governing
Section 2254 Cases in the United States District Courts,
Rule 11(a).
In accordance with 28 U.S.C. § 1915(a) (3), the Court
certifies that any appeal from this order would not be taken in
good faith and thus denies in forma pauperis status should
Siciliano Nufiez appeal. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).

SO ORDERED.
Dated: February 21, 2024 Lf? YA apn
Brooklyn, New York ww oe Se) Ltr
xivoha. MATSUMOTO
United States District Judge
Eastern District of New York

26

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311268. Public record. Not legal advice.