Petition for Writ of Certiorari — Andrew Fields, Petitioner v. New York Department of Corrections and Community Supervision

Supreme Court briefAug 12, 2024

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Case: 23-7349, 03/13/2024, DktEntry: 23.1, Page 1 of 1

E.D.N.Y. - Bklyn

20-CV-9

Chen, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 13 th day of March, two thousand twenty-four.

Present:

Robert D. Sack,

William J. Nardini,

Myma Perez,

Circuit Judges.

Andrew Fields,

Petitioner-Appellant,

23-7349

N.Y.S.D.O.C.C.S.,

Respondent-Appellee.

Appellant, pro se, moves for a certificate of appealability and in forma pauperis status. Upon due

consideration, it is hereby ORDERED that a certificate of appealability is DENIED because

Appellant has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c); see Miller-El v. Cockrell, 537 U.S. 322,327 (2003). The motion for in forma pauperis

status is DENIED as unnecessary. Fed. R. App. P. 24(a)(3).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

Fields v. N.Y.S.D.O.C.C.S., Slip Copy (2023)

Appeal Filed by Fields v. N.Y.S.D.O.C.C.S., 2nd Cir., October 13, 2023

2023 WL 6292479

Only the Westlaw citation is currently available.

United States District Court, E.D. New York.

(Tr. 587:3-4, 22-23.) Shortly thereafter, Petitioner tightened

his headlock on Bradley; as Bradley lost consciousness,

Petitioner and Senat rummaged through his pockets. (Tr.

587:24-588:6.) When Bradley came to, his cell phone, car

keys, wallet and approximately SI, 160 in cash were missing

from his person. (Tr. 588:20-589:4.)

Andrew FIELDS, Petitioner,

N.Y.S.D.O.C.C.S., Respondent.

20-CV-00009 (PKC)

Signed September 27, 2023

Attorneys and Law Firms

Andrew Fields, Albion, NY, Pro Se.

Margaret Ann Cieprisz, NYS Office of Attorney General,

New York, NY, New York State Attorney Generals Office,

Queens County District Attorneys Office, for Respondent.

MEMORANDUM & ORDER

PAMELA K CHEN, United States District Judge:

*1 Before the Court is Petitioner Andrew Fields's petition,

which he brings pro se, for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. For the reasons stated below, the petition

is denied.

BACKGROUND 1

I. Factual Background

A. Petitioner's August 30, 2013 Arrest

On August 30, 2013, Donald Bradley (“Bradley”) walked

into an apartment building at 106-35 159th Street in

Queens County, New York to visit his friend Bobby Garcia

(“Garcia”). (Transcript (“Tr.”),2 Dkt. 31 -2, at 578:16-579:2.)

In the hall of Garcia's apartment building, Petitioner and

Marly Senat (“Senat”) who had entered the building minutes

before Bradley (Tr. 606:5-608:22), approached Bradley from

behind, punched Bradley in the face, and put him into .a

headlock. (Tr. 582-86.) While Petitioner was holding Bradley

in a headlock, Senat approached Bradley, told him to “shut

up,” and hit him in the face. (Tr. 586:5-25.) Senat then

showed a gun to Bradley, and Bradley stopped struggling.

“[MJaybe a couple of days afterward,” Bradley called his

uncle, New York City Police Department (“NYPD”) Chief

Phillip Banks, a high-ranking member of the NYPD, to report

the incident. (Tr. 590:21-591:23.) About a week later, Bradley

filed an official complaint with the NYPD. (Tr. 592:7592:19.) On September 17, 2013, NYPD officers attempted

to pull Petitioner and Senat over for driving a stolen Toyota

Sienna minivan down Guy R. Brewer Boulevard in Queens,

New York; Petitioner, who was driving when the officers

approached him, sped away and crashed the vehicle. (Tr. 802809.) Senat was unable to flee because the passenger door was

stuck; Petitioner ran from the car, but was soon apprehended.

(Tr. 809:14-813.) A loaded revolver was recovered from the

vehicle. (Tr. 812:12-20.) Later that day, Bradley identified

Petitioner and Senat in two separate police line-ups as the

individuals who had robbed him on August 30, 2013. (Tr.

595:18-597:11.)

Petitioner and Senat were arrested on two sets of charges, one

relating to the August 30, 2013 armed robbery of Bradley

and the other relating to Petitioner's and Senat's September

17, 2013 attempt to flee and avoid being stopped and arrested

by the police. (State Court Record (“Record”),3 at ECF4

213-14.) Both sets of charges were later joined in a single

indictment, Indictment Number 2916/13, returned against

Petitioner and Senat on December 5, 2013. {Id. at ECF 212—

14.)

B. Petitioner's Severance Motions

*2 Prior to trial, Petitioner moved to sever trial with respect

to his two sets of charges based on his August 30, 2013

and September 17, 2013 arrests. {Id. at ECF 214.) Petitioner

argued, in sum and substance, that the two incidents were

entirely separate and distinct “criminal transactions” under

C.P.L. §40.10(2), and that a single trial on both sets of charges

“misled the Grand Jury into speculating that” the same gun

recovered on September 17 was also used in the robbery on

August 30, or that the “Grand Jury [was] improperly [led

to] conclude criminal propensity rather than considering the

evidence separately for each of the criminal transactions.” {Id.

at ECF 214, 217.) The Honorable Marcia P. Hirsch of the

Queens County Supreme Court denied Petitioner's motion,

Fields v. N.Y.S.D.O.C.C.S., Slip Copy (2023)

finding that the charges were properly joined pursuant to

C.P.L. § 200.20[2][b]. {Id. at ECF 233.)

his conversations with Bradley before the line-ups and what

Bradley told the detective about what items allegedly had

been taken from him. (Tr. 770:6-773:13.)

C. State Court Trial

Petitioner's and Senat's jury trial began on April 28, 2015

and ended May 18, 2015. (Tr. 2.) Donald Bradley testified

extensively as to the events of August 30, 2013, including

that Senat showed him a “chrome and black” gun during

his robbery (Tr. 587:18-19), and about identifying Petitioner

and Marly Senat in line-ups. (Tr. 577-99.) The prosecution

also presented the testimony of Detective Richard McCarty

regarding the investigation of the August 30, 2013 robbery,

including the call he received from his former partner on

September 17 and the subsequent line-up he conducted with

Petitioner and Senat (Tr. 752-61), and video surveillance

footage showing two men Bradley identified as Defendants

entering and leaving the lobby, with Bradley walking out

minutes later (Tr. 606-12). In addition, the prosecution

introduced the testimony of NYPD Officers Derek Webber,

who testified regarding the moment of Petitioner's arrest on

September 17 (Tr. 741^17); Robert DeFerrari, an officer who

pursued Defendants on September 17 before apprehending

Senat and the loaded revolver from the stolen car (Tr. 80019); Detective Dominic Cappiello, a firearms examiner in

the Forensic Investigation Division, who testified that the

recovered revolver was operable (Tr. 831-42); and the stolen

car's owner (Tr. 737-41).

During Bradley's testimony and throughout the trial, the

Honorable Ronald Hollie, the presiding Queens Supreme

Court Justice, asked numerous questions of the witnesses.

Justice Hollie asked Bradley to clarify who had asked Bradley

for a cigarette before the incident (Tr. 580:13-16), whether

Bradley had testified that Fields first punched Bradley in

the face (Tr. 583:14-584:25), how Petitioner had approached

Bradley, and who had held Bradley in a headlock (585:20586:4). Justice Hollie also asked Bradley about various other

details pertaining to the setting of the mugging (Tr. 583:14584:25), about where Senat was standing when Bradley first

saw him, and what Senat had said to Bradley. (Tr. 586:5—

23.) In addition, the judge asked Bradley specific questions

about what items were taken from him (Tr. 588:24-589:10),

the circumstances surrounding Bradley's interactions with

friends on the street before going to see Bobby Garcia

(Tr. 593:25-595:16; 643:17-644:25), Bradley's knowledge of

the video surveillance of the incident (Tr. 600:10-601:21;

609-12), and Bradley's disability and employment status

(Tr. 619:5-621:16). The judge also asked questions of other

witnesses, including Detective Richard McCarty regarding

Petitioner and Senat again moved at trial to sever the

indictments. After Bradley and Detective McCarty testified,

Petitioner moved for severance on grounds that “Det.

McCarty made it clear that the complainant described the

gun that was allegedly used in the alleged robbery as a semi

automatic gun in all the paper work within this case,” whereas

the recovered gun was a revolver. (Tr. 798:7-799:3.) The

Court denied the motion without explanation. (Tr. 799:45.) At the close of the prosecution's case, Petitioner argued

that the Government's evidence regarding the gun used in the

alleged robbery and the gun recovered from the stolen car

were “descriptions of 2 different guns and 2 different firing

mechanisms”—and since the firearm was the link between

the incidents “there is no basis to join the case together.” (Tr.

848:6-10.)

*3 Near the end of the trial, Petitioner's counsel asked the

Court to give a “missing witness” instruction as to several

witnesses: (1) Garcia, who “would have been in a position to

testify as to [Bradley's] physical appearance and injuries or ...

lack thereof’ after the alleged robbery; (2) Bradley's mother

and stepfather, who had brought Bradley an extra set of keys

after the robbery and also would have been in a position to

testify as to Bradley's injuries; and (3) Bradley's uncle, NYPD

Chief Phillip Banks, who could have verified that Bradley

contacted him about the August 30 robbery soon after it had

occurred. (Tr. 878:23-879:13.) The Court rejected Petitioner's

“missing witness” charge as to all potential witnesses. (Tr.

880:22-881:2.)

Petitioner was found guilty of Robbery in the First Degree

(N.Y. Penal Law § 160.15(4)), two counts of Robbery in

the Second Degree (N.Y. Penal Law § 160.10(1), (2)(a)),

Strangulation in the Second Degree (N.Y. Penal Law §

121.12), two counts of Criminal Possession of a Weapon

in the Second Degree (N.Y. Penal Law § 265.03(1 )(b), (3))

and Criminal Possession of Stolen Property in the Fourth

Degree (N.Y. Penal Law § 165.45(5)). (Tr. 1061-66.) Senat

was convicted on the same charges. (Tr. 1061:23-1063:3.)

On July 21, 2015, the trial court sentenced Petitioner to an

aggregate sentence of 15 years in prison, to be followed by

five years of post-release supervision. (Tr. 1086-1103.)

II. Procedural Background

A. Petitioner's Direct Appeal

WESTLAW €j 2024 Thomson Reuters. No claim to original U.S. Government Works.

Fields v. N.Y.S.D.O.C.C.S., Slip Copy (2023)

In March 2017, Petitioner's post-conviction attorney filed a

direct appeal with the Appellate Division, Second Department

(“Appellate Division”). (Record, at ECF 1-46.) Petitioner

.raised three claims in his counseled brief: (1) the trial

court conducted excessive and prejudicial questioning of trial

witnesses, warranting a new trial; (2) the trial court abused

its discretion when it denied the severance motions, and

(3) the trial court abused its discretion when it failed to

grant Petitioner's missing witness charge.5 {Id. at ECF 6.)

Petitioner also filed a pro se brief raising additional claims:

(1) the medical evidence of Bradley's physical injury was

insufficient to support conviction; and (2) the police sergeant

who recognized Petitioner on surveillance video from the

apartment building lobby where the August 30 robbery

occurred did not testify at trial, which denied Petitioner his

due process right to a fair trial and the right to confront his

accuser, and (3) reiterating the severance argument. (Record,

at ECF 47-61.)

On November 21, 2018, the Appellate Division affirmed

Petitioner's convictions on all counts. People v. Fields, 166

A.D.3d 897 (N.Y. App. Div. 2018). The New York Court

of Appeals denied Petitioner's motion for leave to appeal on

February 19, 2019, and denied Petitioner's applications for

reconsideration on May 28, 2019. People v. Fields, 32 N.Y.3d

1204 (2019), recons. Denied, 33 N.Y.3d 1031 (2019). The

Appellate Division also denied Petitioner's application for re

argument. (Record, at ECF 283.)

B. Petitioner's State Court Motion to Vacate His

Conviction

On August 3, 2021, Petitioner filed a Motion to Vacate

his Conviction pursuant to New York Criminal Procedure

Law (“CPL”) § 440.10(1 )(h) (“440 Motion”) with the trial

court. {Id.at ECF 337.) Petitioner raised two claims: (1) the

trial court conducted excessive and prejudicial questioning

of trial witnesses in violation of Petitioner's Fourteenth

Amendment due process right to a fair trial, and (2) Petitioner

received ineffective assistance of counsel because his attorney

did not object to the trial court's excessive and prejudicial

questioning, thereby failing to preserve this issue for appellate

review. {Id. at ECF 321-37.) The trial court denied Petitioner's

motion in its entirety, finding the first argument both

procedurally barred and meritless, and the second argument

meritless. {Id. at ECF 368-78.) The Appellate Division denied

leave to appeal. {Id. at ECF 395.)

C. Petitioner's Federal Habeas Petition

*4 On January 13, 2020, Petitioner timely filed the instant

petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254. (Dkt. 1, at ECF 1.) On December 16, 2020, Petitioner

first requested a stay and abeyance pending exhaustion of

state remedies, and filed his 440 Motion in state court. (Dkt.

16.) In response, the Court ordered Petitioner to submit a

letter explaining “(1) what claim(s) he seeks to exhaust and

through which state remedies, (2) why he failed to exhaust his

remedies as to those claims prior to filing the instant petition,

and (3) why those claims have merit.” (12/21/2020 Docket

Order.) After multiple extensions, on August 16, 2021,

Petitioner filed his 440 Motion. (Dkts. 17, 18, 21.) Shortly

thereafter, this Court stayed the case pending exhaustion of

Petitioner's claims in state court. (8/18/2021 Docket Order).

On January 12, 2022, while the case was still stayed, the

Court issued a docket order administratively closing the

case pending either party's motion to reopen it; instructing

Petitioner to amend his petition to add all additional claims

not listed in the petition so as to avoid any time bar that could

apply to those added claims; and advising Petitioner that he

could be barred from reopening this case if he unreasonably

delayed exhausting his claims in state court or reopening the

case in this Court after exhaustion. (1/12/2022 Docket Order.)

On February 16, 2022, Respondent mailed the state court

record to Petitioner. (Dkt. 24.)

On September 12, 2022, Petitioner moved to reopen the

case, and to amend his petition for writ of habeas corpus',

Respondent consented, and the Court granted the motion

to reopen and amend the petition. (Dkts. 25-27; 9/26/2022

Docket Order.) Respondent answered, filed the state court

record, and served both on Petitioner on December 12, 2022.

(Respondent's Answer (“Answer”), Dkt. 30; State Court

Record and Transcript, Dkt. 31; Certificate of Service, Dkt.

32.) On January 20, 2023, Petitioner filed the Amended

Petition to include a claim of ineffective assistance of counsel.

(Amended Petition (“Am. Pet.”), Dkt. 33.) ^ The Amended

Petition was fully briefed on April 25, 2023. (Petitioner's

Reply (“Pet.’s Rep.”), Dkt. 40.)

STANDARD OF REVIEW

Under 28 U.S.C. § 2254, as amended by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), an

application for a writ of habeas corpus by a person in custody

pursuant to a state court judgment may only be brought on

the grounds that his or her custody is “in violation of the

Constitution or laws or treaties of the United States.” 28

Fields v. N.Y.S.D.O.C.C.S., Slip Copy (2023)

U.S.C. § 2254(a). To obtain relief, a petitioner must show

that the state court decision, having been “adjudicated on the

merits in State court proceedings,” is either “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States” or “based on an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d); see also Johnson v.

Williams, 568 U.S. 289, 292 (2013). A claim is “adjudicated

on the merits” in the state court if the state court “(1) disposes

of the claim on the merits, and (2) reduces its disposition to

judgment.” Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007)

(quoting Sellan v. Kuhlman, 261 F.3d 303,312 (2d Cir. 2001)).

A state court's decision is “contrary to” Supreme Court

precedent “if the state court applies a rule that contradicts

the governing law set forth in [the Supreme Court's] cases,”

or “if the state court confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent

and arrives at a result opposite to” the Supreme Court's

result. Bell v. Cone, 543 U.S. 447, 452-53 (2005) (internal

citation and quotation marks omitted); see Ennis v. Artus,

No. 09-CV-10157 (DAB) (GWG), 2011 WL 3585954, at

*7 (S.D.N.Y. Aug. 12, 2011) (same) (quoting Williams v.

Taylor, 529 U.S. 362,405-06 (2000)). A state court's decision

“involve[s] an unreasonable application of’ Supreme Court

precedent if there is “no possibility fairminded jurists could

disagree that the state court's decision conflicts with [Supreme

Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102

(2011). In other words, a state court decision must be “more

than incorrect or erroneous.” LocAyer v. Andrade, 538 U.S. 63,

75 (2003). These standards are “ ‘difficult to meet,’ because

the purpose of AEDPA is to ensure that federal habeas relief

functions as a ‘guard against extreme malfunctions in the

state criminal justice systems,’ and not as a means of error

correction.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (citation

and internal quotation marks omitted).

*5 A federal court may not grant habeas relief to a prisoner

in state custody unless the prisoner has exhausted state-court

remedies. See 28 U.S.C. § 2254(b)(1); see also Aparicio v.

Artuz, 269F.3d 78, 89 (2d Cir. 2001) (“If anything is settled in

habeas corpus jurisprudence, it is that a federal court may not

grant the habeas petition of a state prisoner unless it appears

that the applicant has exhausted the remedies available in the

courts of the State[.]” (internal quotation marks and citation

omitted)). This exhaustion requirement includes two parts.

First, “state prisoners must give the state courts one full

opportunity to resolve any constitutional issues by invoking

one complete round of the State's established appellate review

process.” Galdarnez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005)

(emphasis omitted) (quoting O'Sullivan v. Boerckel, 526 U.S."

838, 845 (1999)). In New York, this means a habeas petitioner

must first appeal the relevant conviction to the Appellate

Division, and then seek further review by applying to the

Court of Appeals for a certificate granting leave to appeal.

Id. at 74 (citing, inter alia, Morgan v. Bennett, 204 F.3d 360,

369 (2d Cir. 2000)). Second, habeas petitioners must have

“ ‘fairly presented [their] claims to the state courts,’ such

that the state court had a fair opportunity to act.” Id. at 73

(quoting O'Sullivan, 526 U.S. at 848); see also Aparicio, 269

F.3d at 89-90 (“To satisfy § 2254’s exhaustion requirement,

a petitioner must present the substance of the same federal

constitutional claim[s] that he now urges upon the federal

courts to the highest court in the pertinent state.” (internal

quotation marks and citations omitted)).

DISCUSSION

Petitioner raises five claims for this Court's review: (1) the

trial court's excessive and prejudicial questioning of trial

witnesses violated his due process right to a fair trial (Dkt.

1, at ECF 5; Dkt. 33, at 2); (2) his trial counsel's failure to

object to the trial court's excessive questioning constituted

ineffective assistance (see generally Dkt. 33); (3) the trial

court's denial of severance violated Petitioner's due process

right to a fair trial (Dkt. 1, at ECF 7); (4) the trial court's refusal

to give a “missing witness” instruction violated Petitioner's

due process right to a fair trial (id. at ECF 8); and (5) the

failure of the police officer who had identified Petitioner on

the August 30 surveillance video to testify at trial violated

Petitioner's due process rights to a fair trial and to confront

his accuser (id. at ECF 10).

For the reasons set forth below, the Court denies Petitioner's

habeas petition in its entirety.

I. Petitioner's Judicial Interference Claim is

Procedurally Barred

In his direct appeal in state court, Petitioner argued that the

trial court conducted excessive and prejudicial questioning

of trial witnesses, which violated Petitioner's Fourteenth

Amendment due process right to a fair trial. (Record, at ECF

10-28.) While acknowledging that his trial counsel “did not

object to any of the Court's judicial questioning,” Petitioner

argued that “[n]o objection was necessary ... to preserve this

error for appeal,” in light of the Appellate Division's ruling

weeks before in a different case “that the identical error,

by the same judge, was subject to [that] Court's interest of

WESTLAW €■ 2024 Thomson Reuters, No claim to original U.S, Government Works.

Fields v. N.Y.S.D.O.C.C.S., Slip Copy (2023)

justice jurisdiction.” (Record, at ECF 25-26 (citing People

v. Davis, 147 A.D. 3d 1077, 1079 (N.Y. App. Div. 2017)).)

The Appellate Division disagreed, holding that Petitioner's

claim was unpreserved for appellate review, and declined to

"■consider the claim in the “interest of justice.” Fields, 166

A.D. 3d at 898. Petitioner raised the same claim in his 440

Motion. There, the trial court held that Petitioner's claim was

procedurally barred under CPL § 440.10(2)(c), as there were

sufficient facts on the record to permit appellate review of the

claim. (Record, at ECF 372-73).

A federal court “may not review federal claims that were

procedurally defaulted in state court—that is, claims that the

state court denied based on an adequate and independent state

procedural rule.” Davila v. Davis, 582 U.S. 521, 527 (2017).

“To qualify as an adequate procedural ground, capable of

barring federal habeas review, a state rule must be firmly

established and regularly followed.” Johnson v. Lee, 578

U.S. 605, 608 (2016) (internal quotation marks and citation

omitted). A procedural ground is independent when the state

court relies solely on that law for its disposition and clearly

and expressly states that the judgment rests on that law.

Garner v. Lee, 908 F.3d 845, 859 (2d Cir. 2018).

*6 Under New York State law, to preserve an issue

for appeal, a party must lodge a contemporaneous and

specific objection at trial. N.Y. Crim. Proc. Law § 470.05(2).

The Second Circuit has long recognized New York's

“contemporaneous objection rule” to be “a firmly established

and regularly followed New York procedural rule” that

“constitutes an independent and adequate state law ground.”

Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011); see also

Richardson v. Greene, 497 F.3d 212, 217-19 (2d Cir. 2007)

(same). The rule “require[s], at the very least, that any matter

which a party wishes the appellate court to decide have

been brought to the attention of the trial court at a time

and in a way that gave the latter the opportunity to remedy

the problem and thereby avert reversible error.” People v.

Luperon, 623 N.Y.S.2d 735, 738-39 (1995). Thus, a state

court decision based on contemporaneous-objection grounds

generally precludes federal habeas review. See Downs, 657

F.3d at 103-04.

However, “when ‘a state appellate court refuses to review the

merits of a criminal defendant's claim of constitutional error

because of his failure to comply with ... a “contemporaneous

objection” rule,’ a federal court may review the merits of

such a claim when the state court ‘unevenly’ applies [the]

rule.” Silverman v. Edwards, 69 F. App'x 489, 491 (2d Cir.

2003) (quoting Peterson v. Scully, 896 F.2d 661, 663 (2d

Cir. 1990) and citing Williams v. Lane, 826 F.2d 654, 659

(7th Cir. 1987)). But “an allegedly uneven application of

state procedural default rules in general does not necessarily

establish that the application of a procedural default rule in

a particular case is not ‘adequate.’ ” Wedra v. Lefevre, 988

F.2d 334,340 (2d Cir. 1993) (quoting Andrews v. Deland, 943

F.2d 1162, 1190 (10th Cir. 1991), cert, denied, 502 U.S. 1110

(1992)).

Here, the Appellate Division determined that Petitioner

had failed to preserve his judicial intervention claim via

contemporaneous objection at trial, and did not review the

claim on its merits. Fields, 166 A.D.3d at 898. Therefore,

the Appellate Division's decision bars this Court's review of

Petitioner's claim, unless the Court finds that the Appellate

Division unevenly applied the contemporaneous-objection

rule in this case and that its application of the rule therefore is

not “adequate” to bar federal habeas review. See Davila, 582

U.S. at 527 (holding that federal court may not review federal

claims “that the state court denied based on an adequate and

independent state procedural rule”); Johnson, 578 U.S. at 608

(“To qualify as an adequate procedural ground, capable of

barring federal habeas review, a state rule must be firmly

established and regularly followed.”).

Petitioner's argument about the inadequacy of the Appellate

Division's application of the contemporaneous-objection rule

is based on the fact that the Appellate Division granted

a number of appeals alleging excessive and prejudicial

questioning by Justice Hollie, “in the interest of justice,”

despite defense counsel having failed to object at trial.

(Record, at ECF 10-24.) See People v. Robinson, 151 A.D.3d

758, 759 (N.Y. App. Div. 2017); People v. Hinds, 160 A.D.3d

983, 984 (N.Y. App. Div. 2018); People v. Sookdeo, 164

A.D.3d 1268, 1269 (N.Y. App. Div. 2018); People v. Ramsey,

174 A.D.3d 651, 652 (N.Y. App. Div. 2019); People v.

Savillo, 185 A.D.3d 840, 842 (N.Y. App. Div. 2020); People v.

Martinez, 199 A.D.3d 834 (N.Y. App. Div. 2021). Even so, the

Court does not find that the Appellate Division's decision not

to review Petitioner's excessive questioning claim constitutes

an “uneven application” of the contemporaneous-objection

rule. As the Second Circuit “found in connection with another

New York mle that permits exceptions, even if New York

law allows ‘some discretion to be exercised,’ the application

of the procedural default rule in a particular case remains

appropriate so long as the rule is ‘evenhandedly’ applied ‘to

all similar claims.’ ” Murden v. Artuz, 497 F.3d 178, 193

(2d Cir. 2007) (quoting Wedra, 988 F.2d at 340). “Similarly,

in Glenn v. Bartlett, [the Circuit] found a procedural bar,

based on the defendant's failure to preserve an objection at

Fields v. N.Y.S.D.O.C.C.S., Slip Copy (2023)

trial, even though the state court acknowledged that it could

have reversed the conviction ‘in the interest of justice.’ ”

Id. (quoting Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir.

1996)).

*7 The Appellate Division's exercise of its discretion to

apply the contemporaneous-objection rule in Petitioner's case,

while not applying it in other cases involving alleged judicial

intervention by Justice Hollie, in itself, does not make

the Appellate Division's application of the rule here “not

adequate.” See Wedra, 988 F.2d at 340 (“ ‘[A]n allegedlyuneven application of state procedural default rules in general

does not necessarily establish that the application of a

procedural default rule in a particular case is not ‘adequate.’

” (quoting Andrews, 943 F.2d at 1190)). As the Supreme

Court made clear in Beard v. Kindler:

We hold that a discretionary state

procedural rule can serve as an

adequate ground to bar federal habeas

review. Nothing inherent in such a rule

renders it inadequate for purposes of

the adequate state ground doctrine. To

the contrary, a discretionary rule can

be “firmly established” and “regularly

followed”—even if the appropriate

exercise of discretion may permit

consideration of a federal claim in

some cases but not others.

558 U.S. 53,60-61 (2009).

In Cotto v. Herbert, the Second Circuit identified three

“guideposts” for courts to consider in determining the

adequacy of a state court's application of a procedural

default rule. 331 F.3d 217, 240 (2d Cir. 2003) (stating that

“the adequacy of a state procedural bar is determined with

reference to the ‘particular application’ of the rule”) (quoting

Lee v. Kemna, 534 U.S. 362, 387 (2002)). None of these point

to a finding that the Appellate Division's application of the

contemporaneous-objection rule in this case was inadequate.

The first, “whether the alleged procedural violation was

actually relied on in the trial court, and whether perfect

compliance with the state rule would have changed the trial

court's decision,” is inapplicable here. Clark v. Perez, 510

F.3d 382, 391 n.4 (2d Cir. 2008) (holding that “the failure

altogether to raise an issue cannot be actually relied on

because no court has been notified that the issue even exists”).

The second guidepost—“whether state caselaw indicated that

compliance with the rule was demanded in the specific

circumstances presented”—also clearly favors finding that

the contemporaneous-objection rule is adequate with respect

to Petitioner's judicial interference claim. See, e.g., Adams v.

Keyser, No. 16-CV-129 (GBD) (AJP), 2016 WL 4429889,

at *24 (S.D.N.Y. Aug. 22, 2016) (“The requirement that

a defendant preserve a claim of judicial interference by

appropriate objection or motion for a mistrial ... is firmly

established and regularly followed by New York state

courts.” (collecting cases)). And third, Petitioner clearly did

not “substantially compl[y] with the rule given the realities of

trial” when he failed to raise this issue in any way before the

trial court. Cotto, 331 F.3d at 240.

“Because of comity concerns, a decision that a state

procedural rule is inadequate should not be made Tightly

or without clear support in state law.’ ” Murden, 497 F.3d

at 192 (quoting Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.

1999) (citation omitted)). Federal courts find applications of

the contemporaneous-objection rule inadequate sparingly, for

example, where the “defense counsel's request at trial was

sufficient to preserve the issue” at trial, but the Appellate

Division erroneously found otherwise. Silverman, 69 F. App'x

at 491. Here, it is undisputed that Petitioner failed to lodge

any objection or move for a mistrial on the basis of the judicial

interference that he only alleged post-trial. As such, the

Appellate Division's decision to apply the contemporaneousobjection rule was a valid application of a discretionary

state procedural bar and constitutes “an independent and

adequate state ground foreclosing federal habeas review.”

Wade v. Melecio, No. 21-CV-9138 (GHW) (JLC), 2023

WL 2152489, at *11 (S.D.N.Y. Feb. 22, 2023), report and

recommendation adopted, 2023 WL 2500676 (S.D.N.Y. Mar.

14, 2023). Therefore, Petitioner may obtain review of his

claim only if he demonstrates “cause and prejudice for the

procedural default” or that the “constitutional violation has

probably resulted in the conviction of one who is actually

innocent of the substantive offense.” Dretke v. Haley, 541

U.S. 386, 393 (2004) (internal quotation marks and citations

omitted). Petitioner does not maintain that he is actually

innocent. And although Petitioner does not argue “cause and

prejudice” in so many words, he does argue that his counsel

was ineffective for failing to preserve the judicial interference

argument at trial. {See Dkt. 5, at ECF 2.) Terrell v Kickbush,

No. 17-CV-7027 (JFB), 2019 WL 3859512, at *5 (E.D.N.Y.

Aug. 16,2019) (“A petitioner can demonstrate cause... [if] the

procedural default was the result of ineffective assistance of

counsel.”) (citing Bossett v. Walker, 41 F.3d 825, 829 (2d Cir.

Fields v. N.Y.S.D.O.C.C.S., Slip Copy (2023)

1994)). Because Petitioner's ineffective assistance arguments

fail, see infra Discussion Section II, he cannot overcome the

procedural bar to federal review of his judicial interference

claim, and it is denied as procedurally barred.

leeway courts have in reaching outcomes in case by case

determinations.” Yarborough v. Alvarado, 541 U.S. 652, 653

(2004).

II. Petitioner's Trial Counsel Was Not Ineffective

*8 Petitioner contends that he received ineffective assistance

of counsel because his attorney failed to object to the trial

court's frequent questioning of witnesses. (Dkt. 33.) Petitioner

also raised this claim in his 440 Motion. In denying that

motion, the trial court found that Petitioner's ineffective

assistance claim was “not procedurally barred,” but that it

lacked merit. (Record, at ECF 376 (finding that Petitioner

“failed to show that counsel's lack of objecting to the

trial court's actions deprived him the effective assistance

of counsel.”).) Therefore, Petitioner's ineffective assistance

claim is subject to federal habeas review and entitled to

AEDPA deference, which only permits habeas relief if

the state court's decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law,

as detennined by the Supreme Court of the United States,”

or “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented.”

28 U.S.C. § 2254(d).

In Strickland v. Washington, 466 U.S. 668 (1984),

the Supreme Court established a two-part test for

ineffective assistance of counsel claims: (1) “that [the]

attorney's performance ‘fell below an objective standard of

reasonableness’ and (2) “that there was prejudice, meaning

a ‘reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different. ’

” Tavarez v. Larkin, 814 F.3d 644, 648 (2d Cir. 2016)

(quoting Strickland, 466 U.S. at 688, 694). Under AEDPA,

“it is not enough to convince a federal habeas court that,

in its independent judgment, the state-court decision applied

Strickland incorrectly.” Cone, 535 U.S. at 699. “[A] petitioner

must show ‘that the [state court] applied Strickland to the

facts of his case in an objectively unreasonable manner.’ ”

McPherson v. Kevser, No. 20-161-PR, 2021 WL 4452078,

at *3 (2d Cir. Sept. 29, 2021) (quoting Cone, 535 U.S. at

699); see also Cullen v. Pinholster, 563 U.S. 170, 190 (2011)

(describing review of state-court applications of Strickland

in the habeas context as “doubly deferential” and “highly

deferential”); Rosario v. Ercole, 601 F.3d 118, 123 (2d

Cir. 2010) (“[Sjtate courts are granted even more latitude

to reasonably determine that a defendant has not satisfied

that [Strickland] standard.” (cleaned up)). Further, ,“[t]he

more general the rule [applied by the state court], the more

Petitioner argues that his attorney's performance was deficient

because despite believing that the trial court's questions were

excessive and prejudicial, Petitioner's counsel failed to object

to the court's questions. (Dkt. 33, at 2, 3.) Further, Petitioner

contends that but for counsel's failure to object, there is

a reasonable probability that the result of the proceedings

would have been different. (Dkt. 33, at 4 (“If counsel would

have inform [sic] the court of this [prejudicial questioning]

from its onset, than [sic] the court would have had a chance to

cure this misconduct, refrained from continuing to question

the witnesses in that manner and given Petitioner a chance of

justice with a fair trial.”).)

The trial court examined Petitioner's ineffective assistance

claim under New York's constitutional standard for

ineffective assistance, which requires that a defendant receive

“meaningful representation,” and “is ultimately concerned

with the fairness of the process as a whole rather than its

particular impact on the outcome of the case.” (Record, at

ECF 376 (quoting People v. Benevento, 91 N.Y.2d 708, 712,

714 (1998)).) “The Second Circuit has repeatedly recognized

that the New York ‘meaningful representation’ standard is not

contrary to the Strickland standard. ... For this reason, ‘[t]he

only avenue of reprieve available to [Petitioner] then is to

establish that the state court unreasonably applied Strickland. ’

” Arena v. Kaplan, 952 F.Supp.2d 468, 489 (E.D.N.Y. 2013)

(internal citations omitted) (quoting Rosario, 601 F.3d at

126).

As to the first prong—trial counsel's allegedly

substandard performance—Petitioner “must overcome the

presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Cone, 535

U.S. at 698. The decision of when to object and on what

grounds is a matter of trial strategy and tactics, and is

“virtually unchallengeable absent exceptional grounds for

doing so.” Broxmeyer v. United States, 661 F. App'x. 744,

748 (2d Cir. 2016) (summary order) (citation omitted). While

Petitioner's counsel might have felt that Justice Hollie's

frequent questioning was detrimental to Petitioner, she also

could have reasonably made the strategic calculation that

registering a complaint with the judge carried greater risks

than dealing with the results of that questioning through

cross-examination and/or argument. Further, although the

trial judge did intervene on numerous occasions, many of

his interventions were to clarify the witness's testimony and

Fields v. N.Y.S.D.O.C.C.S., Slip Copy (2023)

were not explicitly biased or prejudicial. Neutral questions

posed by the court can illicit responses that are injurious to the

defense, but that does not make them improper or violative

of a defendant's right to a fair trial. Dave v. Att'y Gen. of

State ofN.Y., 712 F.2d 1566, 1572 (2d Cir. 1983). Therefore,

counsel's decision not to object to questions posed by the

trial court—especially where those questions merely clarified

admissible and relevant testimony—does not fall below an

objective standard of reasonable performance.

Further, Petitioner has not established how the outcome

of the proceedings would have been different if counsel

had objected to the judge's questioning. Tavarez, 814 F.3d

at 648. Even if the Petitioner's counsel had objected to

that questioning, there was “no significant probability” that

Petitioner would have been acquitted. People v. Vasquez, 76

N.Y.2d 722, 725 (N.Y. 1990). Given the victim, eyewitness,

and law enforcement testimony, and video surveillance

evidence, presented to the jury, there was overwhelming

evidence of Petitioner's guilt, and Petitioner has provided no

basis for finding that the verdict would have been different if

his counsel had objected to the trial court's questions. Thus,

Petitioner was not prejudiced.

Accordingly, the state court did not unreasonably apply

Strickland, and Petitioner's ineffective assistance of counsel

claim is denied as meritless.

III. Petitioner's Severance Claim Fails on the Merits

Petitioner alleges that his Fourteenth Amendment due process

right to a fair trial was violated when the trial court denied

his motion to sever for trial the charges stemming from

the alleged August 30 robbery from those stemming from

the events of September 17. (Dkt. 1, at ECF 7 (“The 2

case's [sic] are not from the same incident, they are not a

continuous incident, they do not occur on the same day,

they are not similar in criminal statu[t]e and nothing of

the two have anything in common to combine them.”).)

Petitioner raised this claim on direct appeal. In affirming

the trial court's denials of Petitioner's severance motions, the

Appellate Division found that “the nature of the evidence for

each of the offenses was material and admissible as evidence

upon the trial of the other counts in the indictment.” Fields,

166 A.D.3d at 897. The Appellate Division also held that the

trial court lacked the authority to sever the counts, since the

offenses “were properly joined in one indictment from the

outset” pursuant to CPL § 200.20(2)(b). Id. Petitioner's appeal

application to the New York Court of Appeals reiterated all

of the claims from his direct appeal, including the severance

WESTIAW

claim. (Record, at ECF 284.) He has therefore properly

exhausted his state law remedies with respect to this claim,

and it is subject to AEDPA deference.

The improper joinder of charges against a defendant is a

matter of state law and does not amount, on its own, to a

constitutional violation. McKinnon v. Superintendent, Great

Meadow Corn Facility, 422 F. App'x 69, 72 (2d Cir. 2011)

(citing United States v. Lane, 474 U.S. 438, 446 n.8 (1986));

McCall v. Artus, No. 06-CV-3365 (SAS) (DF), 2008 WL

4501834, at *8 (S.D.N.Y. Sept. 29, 2008) (“As a preliminary

matter, it should be stressed that the issue for this Court

is not whether the consolidation of the indictments in this

case was proper under state law” because “[fjederal habeas

relief ‘does not lie for errors of state law.’ ”) (quoting Estelle

v. McGuire, 502 U.S. 62, 67 (1991)). “Joinder of offenses

rises to the level of a constitutional violation only if it

actually render[s] petitioner's state trial fundamentally unfair

and hence, violative of due process.” Herring v. Meachum,

11 F.3d 374, 377 (2d Cir. 1993) (internal quotations marks

and citations omitted). In evaluating whether the joinder of

claims rises to the level of a constitutional violation, only

the consequences of that action—not the joinder itself—can

be assessed. Conroy v. Racette, No. 14-CV-5832 (JMA),

2017 WL 2881137, at *13 (E.D.N.Y. July 6, 2017) (quoting

Herring, 11 F.3d at 377). Therefore, to succeed on a federal

habeas claim of improper joinder, Petitioner must “go beyond

the potential for prejudice and prove that actual prejudice

resulted from the events as they unfolded during the joint

trial.” Herring, 11 F.3d at 377-78.

*10 Here, Petitioner fails to show that he was actually

prejudiced as a result of the August 30 and September 17

charges being joined into a single indictment and for trial.

On direct appeal, Petitioner argued that he was prejudiced

“because proof of the identity of the robbers was not strong,”

and “the jury may have relied on the flight and apprehension”

evidence from Petitioner's September 17 arrest to prove the

robbery crime on August 30. (Record, at ECF 35-36.) Even

assuming that evidence relating to the two arrests bolstered

each other—a perfectly logical assumption—that fact did not

“actually render petitioner's state trial fundamentally unfair

and hence, violative of due process.” Herring, 11 F.3d at

377 (noting that the Supreme Court “explicitly accept[s]”

that prejudicial effect will inhere when several crimes are

tried together, nevertheless, “[jjoinder of offenses rises to the

level of a constitutional violation only if it actually render[s]

petitioner's state trial fundamentally unfair and hence,

violative of due process.”). This is because the prosecution

was entitled to use the evidence from the September 17

2024 Thomson Reuters. No claim to original U.S. Government Works.

Fields v. N.Y.S.D.O.C.C.S., Slip Copy (2023)

arrest to prove the identities of the perpetrators of the August

30 robbery. CPL § 200.20(2)(b) allows joinder of offenses

based on separate criminal acts into one indictment where

“proof of the first offense would be material and admissible

as evidence in chief upon a trial of the second, or proof of

the second would be material and admissible as evidence in

chief upon a trial of the first[.]” Here, the charges from the

two incidents were necessarily and inextricably related: the

gun recovered on September 17 was material and admissible

evidence of both Petitioner's role in the August 30 robbery

and his relationship with co-defendant Senat. (Record, at ECF

91-93.) Thus, evidence relating to Petitioner's and Senat's

September 17 arrest was properly admitted at trial as proof

of their involvement in the August 30 robbery. Dayton v.

LaValley, No. ll-CV-1261 (DG) (CLP), 2021 WL 3848148,

at *14 (E.D.N.Y. July 29, 2021) (denying a severance

habeas claim where “the same evidence would have been

presented” at both severed trials and severance “would

create an undue burden upon the People to necessarily bring

many of the same witnesses forward once again.” (citation

omitted)). Petitioner's argument that there were fundamental

discrepancies between Bradley's description of the gun used

in his robbery and the gun recovered on September 17 is

also unpersuasive; Bradley described a “chrome and black”

handgun that was largely consistent with the gun recovered

on September 17. {Compare Tr. 686:12-16 (describing “top”

of gun as chrome and handle as black) with Tr. 106:15-18

(“It's a silver revolver... a 44 Magnum with a black handle.”).)

Although Petitioner contends that Bradley initially described

the gun brandished during his robbery as an “automatic”

gun, on cross-examination Bradley did not seem to be able

to describe the difference between an automatic gun and a

revolver, and did not recall telling the NYPD that the gun was

automatic. (Tr. 685:20-21 (“I don't know what type of gun

it was. I don't recall telling him what type of gun it was.”);

686:2-9.) Further, the trial court carefully instructed the jury

separately on each element of each of the seven charges

stemming from the two arrests. {See generally Tr. 978—

1021, 1028:9-1029:18,1054:17-1058:8.)flm*e v. Smith,No.

07-CV-3098 (NG), 2012 WL 2394718 (E.D.N.Y. June 21,

2012) (denying joinder habeas claim where “[although the

trial judge did not give specific instructions regarding the

independent nature of each of the charges, he did instruct the

jury as to each element of each charge separately.”).

Second, Petitioner's claims that joinder caused actual

prejudice are based on speculation rather than evidence.

Rolling v. Fischer, 433 F. Supp. 2d 336, 344 (S.D.N.Y. 2006)

(denying habeas claim premised on “mere speculation” that

joinder caused prejudice). Since Petitioner provides no proof

that he was actually prejudiced by the denials of his severance

motions, his claim is denied. See e.g., Matthews v. Artuz,

No. 97-CV-3334 (DC), 1999 WL 349694, at *4 (S.D.N.Y.

May 27, 1999) (“Here, petitioner's claim fails on the merits

because he cannot demonstrate actual prejudice.”). Petitioner

has not shown—and would be hard-pressed to show, given the

surveillance video and witness testimony identifying him at

both the robbery and with the stolen car and recovered firearm

—that, “but for the joint trial, he would have been acquitted of

the charges arising from either of the two incidents.” McCall,

2008 WL 4501834, at *10.

For the foregoing reasons, Petitioner fails to carry his

“onerous burden” of demonstrating actual prejudice as a

result of the consolidation of his two sets of charges into

a single indictment and for trial. Herring, 11 F.3d at 378.

Therefore, habeas relief is denied on this ground.

IV. Petitioner's Claim Based on the Failure to Give a

Missing Witness Charge Is Meritless

Petitioner argues that his right to a fair trial was violated

when the trial court denied his motion for a “missing witness

charge”—i.e., an instruction that the jury could draw an

adverse inference from the state's failure to call a witness in

their control—regarding Bobby Garcia. (Dkt. 1, at ECF 8.)

Petitioner raised this claim at the end of the presentation of all

of the evidence at trial (Tr. 879), and again on direct appeal

(Record, at ECF 37^13). The Appellate Division held that

the request was untimely, and that Petitioner had failed to

show that Garcia was knowledgeable about a material issue in

the case and would have provided non-cumulative testimony.

Fields, 166 A.D.3d at 897.

While the failure to provide a missing witness charge is a

matter of state law and is therefore not cognizable under

federal habeas review, Estelle, 502 U.S. at 67-68, federal

courts may consider whether the failure to provide the

missing witness charge violated a petitioner's constitutional

rights. Bisnauth v. Morton, No. 18-CV-4899 (JFB), 2021 WL

3492746, at *14 (E.D.N.Y. Aug. 9, 2021). Habeas relief is

available only if the trial court's failure to provide a missing

witness charge “so infected the entire trial that the resulting

conviction violated due process.” Klosin v. Conway, 501

F. Supp. 2d 429, 444 (W.D.N.Y. 2007) (quoting Cupp v.

Naughlen, 414 U.S. 141, 147 (1973)). Further, “[wjhere, as

here, the alleged error is one of omission, it ‘ is less likely to be

prejudicial than a misstatement of the law,’ thereby making

the petitioner's ‘burden ... especially heavy.’ ” Crews v.

Fields v. N.Y.S.D.O.C.C.S., Slip Copy (2023)

Herbert, 586 F. Supp. 2d 108, 114 (W.D.N.Y. 2008) (quoting

Henderson v. Kibbe,43l U.S. 145, 155 (1977)).

*11 Under New York law, the decision to give a missing

witness charge to the jury is at the discretion of the trial

judge. Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992).

To obtain a missing witness charge, the party requesting the

charge bears the burden of establishing that (1) “the witness's

knowledge [is] material to the trial”; (2) “the witness [is]

expected to give noncumulative testimony favorable to the

party against whom the charge is sought”; and (3) “the witness

[is] available to that party.” Zimmerman v. Conway, No. 10CV-1393 (ER) (PED), 2018 WL 6413144, at *6 (S.D.N.Y.

Dec. 6, 2018) (quoting People v. Savinon, 100 N.Y.2d 192,

197 (2003)).

Here, Petitioner fails to show that the trial court abused its

discretion by failing to give a missing witness charge as

to Garcia. Petitioner contends that the allegedly “missing

witness,” Garcia, should have been produced to testify

regarding Bradley's physical condition after the robbery

—an issue material to one of the second degree robbery

charges, which required proof that the complaining witness

suffered “physical injury,” N.Y. Penal Law § 160.10(2)(a)—

and that Garcia's testimony would have been non-cunrulative

because there was no other witness besides Bradley to testify

about his physical condition. Notably, Petitioner does not

explain how Garcia would have testified regarding Bradley's

injuries or even if Garcia could have testified about that

subject. Petitioner therefore cannot demonstrate that Garcia's

testimony would have been probative or helpful to the jury,

whether it would have been non-cumulative of Bradley's

own testimony, or whether it would have been favorable to

Petitioner. Arena, 952 F. Supp. 2d at 489 (“A missing witness

charge is not appropriate when the witness's testimony would

merely corroborate the testimony of other witnesses.”) (citing

People v. Keen, 94 N.Y.2d 533, 539 (2000)). Further, there

is no indication that Garcia was available to the prosecution;

indeed, Bradley repeatedly testified that he had not been in

touch with Garcia since the day he was robbed in Garcia's

lobby. Thus, Petitioner fails to demonstrate that the Appellate

Division erred in finding that the trial court did not abuse

its discretion in denying his requests for a missing witness

charge.

Even assuming arguendo that the trial court erred by

not giving the missing witness charge, Petitioner has not

demonstrated that this error “so infected the entire trial

that the resulting conviction violated due process.” Klosin,

501 F. Supp. 2d at 444 (quoting Cupp, 414 U.S. at 147).

Indeed, in the face of overwhelming evidence of Petitioner's

guilt—e.g., surveillance video footage, Bradley's line-up

identifications of Petitioner and Senat, the recovery of

a firearm from Petitioner and Senat similar to Bradley'sdescription—Petitioner offers nothing to show that the

absence of the missing witness charge as to Garcia so

“infected the entire trial” as to deprive Petitioner of due

process. Petitioner's claim—that the absence of Garcia's

testimony as to one largely uncontested element of one

charge so infected the entire trial that the resulting conviction

on seven separate charges violated due process—is pure

conjecture. Toland v. Walsh, No. 04-CV-0773 (GLS), 2008

WL 65583, at *14-15 (N.D.N.Y. Jan. 4, 2008) (denying

habeas relief where possibility that missing witness would

give favorable testimony was “based upon nothing other

than mere conjecture” and stating that “federal habeas

relief cannot be granted upon claims that are rooted in

speculation”). Therefore, habeas relief is denied as to

Petitioner's missing witness charge claim.

V. Petitioner's Confrontation Clause Claim is Meritless

*12 Lastly, Petitioner argues that his due process right to

“confront his accuser” because the NYPD officer who had

identified Petitioner on “a video of [the] alleged robbery”

never came “to any form of the proceedings.” (Dkt. 1, at

ECF 10.) The Court assumes that Petitioner's argument is

that the NYPD officer, Sgt. Demma, should have testified

at trial. Petitioner first raised this claim on direct appeal, in

his pro se supplemental brief, (Record, at ECF 53-57), and

the Appellate Division held that it was unpreserved. Fields,

166 A.D.3d at 898. Petitioner's motion for leave to appeal to

the New York Court of Appeals, which was denied, included

this claim, and so the claim is exhausted even though he did

not raise it in his 440 Motion. Watson v. New York, No. 19CV-0707 (CM), 2019 WL 6117711, at *2 (S.D.N.Y. Nov. 15,

2019) (“[A] petitioner need not give the state court system

more than one full opportunity to rule on his claims; if he

has presented his claims to the highest state court on direct

appeal he need not also seek collateral relief.” (quoting Daye

v. Att'y Gen. of the State ofN.Y., 696 F.2d 186, 191 n.3 (2d

Cir. 1982))).

Petitioner's claim is procedurally barred by the Appellate

Division's finding that he failed to preserve the issue for

appeal. Davila, 582 U.S. at 527. As discussed supra,

New York State's preservation rule is “a firmly established

and regularly followed New York procedural rule,” and

is therefore an independent and adequate state ground

foreclosing federal habeas review. Downs, 657 F.3d at 104.

WESTLAW •& 2024 Thomsen Reuters. No claim to original U .S Government Works.

Fields v. N.Y.S.D.O.C.C.S., Slip Copy (2023)

The Appellate Division relied solely on this procedural

ground for its determination. Fields, 166 A.D. 3d at 898.

Although the Appellate Division ruling simply stated that

|)‘[t]he defendant's remaining contentions, including those

raised in his pro se supplemental brief, are unpreserved

for appellate review, ... and we decline to consider them

in the interest of justice,” id. (internal citations omitted),

and did not specifically reference the contemporaneousobjection rule, the Appellate Division's decision is sufficient

to foreclose federal habeas review. See Wade, 2023 WL

2152489, at *11 (finding a claim procedurally barred for

federal habeas review where the Appellate Division “declined

to review ... based on lack of preservation,” but failed to

cite the contemporaneous-objection rule statute, C.P.L. §

470.05(2)).

With respect to this claim, Petitioner argued in his pro se

motion for reconsideration of his application for leave to

appeal to the Court of Appeals that “[t]he failure of defendant

to object at trial, to the identification by Sgt. Demma is

hardly a waiver, since defendant made an appropriate pretrial

motion to suppress the identification” and “no purpose

would be served by renewing it [at] trial.” (Record, at ECF

293.) But Petitioner's pretrial motion to suppress the photo

array and line-up identifications clearly did not involve the

same issue he raised post-trial or raises now about Sgt.

Demma not testifying at trial about his identification of

JPetitioner. (See Record at ECF 166 (Petitioner moving to

suppress the photo array as suggestive); Tr. 148-52 (denying

Defendants’ suppression motions on grounds that they are

“reasonably enough non-suggestive”).) “New York’s highest

courts uniformly instruct that to preserve a particular issue for

appeal, [a] defendant must specifically focus on the alleged

error.” Garvey v. Duncan, 485 F.3d 709, 714-15 (2d Cir.

2007) (collecting cases). Thus, Petitioner simply did not

preserve the argument that he should have been permitted to

cross-examine Sgt. Demma at trial.

Finally, Petitioner's claim that Sgt. Demma's “testimony

would have had a vital impact on the outcome of this

case” (Record, at ECF 56-57) is purely speculative and

fails to establish cause for default and actual prejudice, or a

miscarriage of justice due to absolute innocence. Coleman v.

Thompson, 501 U.S. 722, 750 (1991). Therefore, Petitioner's

claim is procedurally barred and denied.

CONCLUSION

*13 For the reasons explained above, the Court denies

Petitioner's habeas petition in its entirety. Moreover, the

Court declines to issue a certificate of appealability because

Petitioner has not made a substantial showing of the denial of

a constitutional right. See 28 U.S.C. § 2253(c)(2).

SO ORDERED.

All Citations

Slip Copy, 2023 WL 6292479

Footnotes

Because Petitioner was convicted at trial, the Court presumes the facts set forth herein as established and views them

in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (“Once a defendant

has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal

conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.”).

References to “Tr.” refer to the numbering created by the Court's electronic filing system, or “ECF,” within the transcript

of the state court proceedings (Dkt. 31-2)—not to the internal pagination thereof.

References to the “Record” refer to the State Court Record filed at Dkt. 31-1.

Citations to “ECF" refer to the pagination generated by the Court's CM/ECF docketing system and not the document's

internal pagination.

Although Petitioner seemed to seek a missing witness charge as to multiple potential witnesses at trial, he only appealed

the denial regarding Bobby Garcia. (Record, at ECF 37-43.)

Petitioner filed the same Amended Petition a second time on January 23, 2023. (Dkt. 34.)

The Court notes that, although Petitioner's constitutional claim is procedurally barred from federal review, Justice Hollie's

conduct in this case is similar in nature—although not necessarily in degree—with his conduct in other cases where

the Appellate Division has found defendants’ rights to have been violated. In People v. Robinson, for example, the

Appellate Division found that Justice Hollie “effectively took over the direct examination of a complaining witness while the

prosecutor was eliciting details related to ... the physical altercations at issue" and Justice Hollie “posed at least eight factspecific questions about [the witness's] physical location in relation to that of the attacker.” 151 A.D. 3d at 759; see also

Ramsey, 174 A.D. at 652, (describing Justice Hollie as “engaging] in extensive questioning of witnesses, usurping] the

Fields v. N.Y.S.D.O.C.C.S., Slip Copy (2023)

roles of the attorneys, eliciting] and assist[ing] in developing facts damaging to the defense on direct examination of the

People's witnesses, bolstering] the witnesses’ credibility, interrupting] cross-examination, and generally create[ing] th$

impression that it was an advocate on behalf of the People.”); see also People v. Davis, 147 A.D. 3d at 1079 (reversing

conviction and noting, “[i]n last analysis, [the trial judge] should be guided by the principle that his [or her] function i;|j?

to protect the record, not to make it. The line is crossed when the judge takes on either the function or appearance of

an advocate at trial. Indeed, even proper questions from trial judges present significant risks of prejudicial unfairness,

particularly when the trial judge indulges in an extended questioning of witnesses.” (internal citations and quotations

omitted)).

Here,. Justice Hollie asked Bradley, the complaining witness, seven consecutive questions about Petitioner's positioning

relative to him as the alleged assault unfolded (Tr. 583:14-584:19)—and then, after the Government asked several

questions, the Court interjected again to ask seven more questions about the sequence of the attack and the actions

of his alleged attackers (Tr. 585:20-596:23). The Court intervened several more times during the complaining witness's

direct examination to develop key aspects of the record by asking between five and seven consecutive fact-specific

questions. (Tr. 588:24-589:10; 590:5-15; 595:6-17; 600:5-25; 601:1-22; 600:13-22; 611:14-612:17; 619:5-621:16;

590:12-17 (“The Court: So you contacted relatives and they came into Queens. The Witness: Yes. The Court: People.

[The Government]: That was my next question your Honor. Where did you go immediately after the robbery?”).) Justice

Hollie also took over defense counsel's questioning of Detective Robert McCarty regarding the conversations he had

with Bradley before the lineups in which he identified Petitioner and his co-defendant, eliciting testimony regarding the

items Bradley reported as having been stolen (Tr. 770, 771:3-22, 772:13-773:13), and regarding Bradley's description of

the alleged perpetrators of his robbery (Tr. 778:20-779:11; 781:22-782:20). Justice Hollie also asked Detective Robert

DeFerrari numerous questions about the pursuit of Petitioner and Senat on September 7, 2013. (Tr. 807:22-808:14;

809:23-812:2; Tr. 813:10-814:5; see People v. Hinds, 160 A.D. at 984 (“The court elicited step-by-step details from

several officers regarding their observations and actions during their apprehension of the defendant’’).) The Court did not

make similar interventions to develop facts relating to Petitioner's defense, but instead repeatedly admonished defense

counsel (Tr. 635:9-15, 601:1-22, 629:2-8), denied defense attempts to impeach the complaining witness (Tr. 636:21 —

638:11, 720:4-24) and testifying officers (Tr. 770:6-771:22), and elicited facts that defense counsel did not intend to

seek (Tr. 644:6-21).

However, in light of the procedural bar on federal habeas review as to this claim, the “substantial burden of showing

reversible error,” United States v. Bejasa, 904 F.2d 137, 141 (2d Cir. 1990), and Justice Hollie's use of a curative

instruction (Tr. 960:20-25), the Court does not make a determination as to whether the trial court engaged in excessive

and prejudicial questioning that deprived Petitioner of his right to a fair trial.

At a pre-trial hearing, NYPD Detective Richard McCarty testified that he and one Sergeant ("Sgt.") Demma reviewed

surveillance video from the date of the Bradley robbery, and Sgt. Demma indicated that he knew Petitioner “from a

previous incident.” (Tr. 10:5-13.)

End of Document

'Ifcpfecxp

■j

r.’*

■i

. &

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

July 3, 2024

Scott S. Harris

Clerk of the Court

(202) 479-3011

Mr. Andrew Fields

Prisoner ID 04595-033

Gouvemeur Correctional Facility

PO Box 480

Gouvemeur, NY 13642

Re: Andrew Fields

v. New York Department of Corrections and Community

Supervision

Application No. 23A1177

Dear Mr. Fields:

The application for an extension of time within which to file a petition

for a writ of certiorari in the above-entitled case has been presented to

Justice Sotomayor, who on July 3, 2024, extended the time to and including

August 12, 2024.

This letter has been sent to those designated on the attached

notification list.

Sincerely,

Scott S. Harris, Clerk

Case Analyst

* A

‘c

SUPREME COURT - STATE OF NEW YORK

CRIMINAL TERM, PART K-20, QUEENS COUNTY

125-01 QUEENS BOULEVARD

I<EW GARDENS, NEW YORK 11415

PRESENT:

HONORABLE CASSANDRA M. MTTT.T.F.M

JUSTICE OF THE SUPREME COURT

THE PEOPLE OF THE STATE OF NEW YORK,

-agamst-

DECISION AND

ORDER OF THE

COURT

Queens County

Ind. No.: 2916/13

Motion to Vacate

the Judgment of

Conviction

ANDREW FIELDS,

Defendant.

Defendant Andrew Fields stands convicted, after a jury trial, of first-degree

robbery and other related crimes, arising from two separate incidents. In the first

incident, he and co-defendant Marly Senat robbed Donald Bradley at gunpoint on

August 30, 2013. Then, on September 17, 2013, defendant and Senat sped away from

police when the police attempted to pull the two over for driving a stolen car with a

gun inside. Following his conviction for these crimes, the court sentenced defendant,

as a s econd violent felony offender, to an aggregate prison term of fifteen years, and his

{

judgment of conviction was affirmed on

appeal (.People v. Fields, 166 AD3d 897 [2d Dept.

2018] Iv. denied 32 NY3d 1204 [2019]).

Defendant now moves,pro ». to vacate his judgment of conviction under section

440.10 of the Criminal Procedute Law. For the reasons that follow, his motion is

denied.

BACKGROI Tisrn

On August 30, 2013, Donald Bradley was visiting a friend inside

an apartment

building at 106-35 159* Street, Queens County, when defendant jumped

out from

behind him and punched Bradley in the face. The

two struggled, and defendant put

Bradley in a headlock while continuing to punch him. Co-defendant Senat then stepped

out in front of Bradley and pointed a firearm at him and told him to be quiet. Still in

the headlock, Bradley stopped struggling when he

saw the gun but nonetheless lost

consciousness. As he passed out, he felt defendant and

co-defendant Senat rummaging

through his pockets and later discovered that they had taken his

money, wallet, cell

phone and car keys.

On September 17, 2013, police saw defendant and

co-defendant Senat driving a

stolen 2006 minivan. The police attempted to pull defendant over, but he sped up and

lost control of the car, ultimately era

shing into the fence of a residential area. The police

then arrested defendant.

Following his arrest, defendant

was charged with these two incidents. For these

crimes, he was charged with Robbery in the First Degree (Penal Law § 265.15[4])

, two

counts of Robbery in the Second Degree (Penal Law § 160.1Q[1], [2][a]), Strangulation .

in the Second Degree (Penal Law § 121.12), two counts of Criminal Possession of a

Weapon in the Second Degree (Penal Law § 265.03[l][b], [3], and Criminal Possession

of Stolen Property in the Fourth Degree (Penal Law § 165.45[5]).

He then proceeded to trial before a justice of this court, and a jury. Upon

conclusion of the trial, the jury convicted defendant of all charges. On July 21, 2015,

the court sentenced defendant to an aggregate prison term of fifteen years.

Defendant then appealed his judgment of conviction to the Appellate Division,

Second Department. In his appeal, he argued, inter alia, that the trial court excessively

with the examination and cross-examination of the witnesses, thereby depriving him of

a fair trial. The People opposed defendant’s claim, arguing that this claim was not

preserved and, in any event, without merit as the trial court acted within its province to

clarify confusing testimony, and otherwise did not usurp the role of the prosecutor.

In a decision and order dated November 21, 2018, the Second Department

affirmed defendant’s judgment of conviction (People v. Fields, 166 AD3d 897 [2d Dept.

2018]) Iv. denied 32 NY3d 1204 [2019]. In its decision, the Court did not specifically

address defendant’s claim that the trial court excessively interfered in the trial. Instead,

it dismissed that claim along with several others as unpreserved and declined to review

those claims in the interest of justice (id. at 898).

The Current Motion

In his current motion, defendant, pro se, moves to vacate his judgment of

conviction under CPL 440.10, claiming that the trial court excessively interfered with

the trial by its questioning of the witnesses. In support of this argument, he cites several

instances in which the trial court questioned the witnesses. Defendant also claims that

he was denied the effective assistance of counsel, owing to counsel’s failure to preserve

this issue for appellate review.

In a response dated December 7, 2021, the People oppose defendant’s motion.

First, the People argue that defendant’s claim regarding the court’s conduct is

procedurally barred as one that should have been raised on appeal. With respect to

defendant s ineffective assistance claim, the People argue that, viewing counsel’s

representation in its totality, defendant received the effective assistance of counsel, and

counsel was not ineffective for failing to raise an objection to the court’s otherwise

proper conduct.

In a reply dated January 11, 2022, defendant contends that his claims present a

“mixed claim,” with matters appearing both on the record and off the record, and so

appropriately raised in a post-conviction motion. He also argues that his claims are not

procedurally barred as a recent amendment to the CPL 440.10(2) (c) permits review of

ineffective assistance claims in a post-conviction motion, notwithstanding that the claim

was reviewable on direct appeal.

DISCUSSION

Under section 440.1G of the Criminal Procedure Law, a defendant may, “at any

time after entry of judgment,” move to vacate the judgment of conviction based on

several enumerated grounds. Such motions, however, “must” be denied when

“sufficient facts appeared on the record” to. have permitted adequate appellate review

of the ground or issue raised, but no such review took place “owing to the defendant’s

... unjustifiable failure to raise such ground or issue upon an appeal” (CPL 440.10[2][cj).

In other words, “defects that can be raised on direct appeal in that way or not at all”

(People v. Cuadrado, 9 NY3d 362, 365 [2007]). “The purpose of this provision is to

prevent CPL 440.10 from being employed as a substitute for direct appeal when [the]

defendant was in a position to raise an issue on appeal” (.People v. Cooks, 67 NY2d 100,

103 [1986]). Where a motion is not procedurally barred, however, a court may still deny

a motion to vacate a judgment of conviction without a hearing where, among other

grounds, the papers do not state a legal basis entitling the defendant to relief (CPL

440.30[4] [a]).

Here, sufficient facts appeared on the record so as to permit appellate review of

defendant’s claim that the trial court impermissibly took on an active role in the direct

and cross-examination of witnesses. As such, this claim was reviewable on appeal and

therefore procedurally barred under CPL 440.10(2) (c). In supporting this claim,

defendant points entirely to interactions between the court. For example, he alleges

that, ‘Throughout the trial, the supreme court conducted excessive and prejudicial

questioning of trial witnesses” (Defendant’s Motion at 11), and that “the court asked

over 350 fact specific questions even though there was rarely any need to clarify their

testimony” (Defendant’s Motion at 12). He bases this claim entirely on exchanges

between the court, the witnesses, and the attorneys that occurred at trial (Defendant’s

Motion at 12-17), and otherwise presents no issues or facts that appeared “off the

record.” And in fact, defendant actually did raise this claim on appeal, but the Second

Department dismissed it as unpreserved. Post-conviction motions under CPL 440 do

not exist to circumvent either the appellate process or the preservation requirement (see

' Cooks, 67 NY2d at 103).

Moreover, even if this Court were to entertain the merits of defendant’s motion,

it would nonetheless be denied without a hearing (see CPL 440.30[1]). Under CPL

440.30[4][a], a court may deny a post-conviction motion when “the moving papers do

not allege any ground constituting legal basis for the motion.”

Defendant claims that the trial court impermissibly interfered with the

examination of the witnesses. The Court of Appeals has “recognized the Trial Judge’s

vital role in clarifying confusing testimony and facilitating the orderly expeditious

progress of trial,” but has cautioned that such power “is one that should be exercised

sparingly (People v. \ut Wai Tom, 53 NY2d 44 [1981]). A trial judge is there expected

“to protect the record, not to make it” (id. at 58). Further, “even if a trial judge makes

intrusive remarks that would better have been left unsaid, or questions witnesses

extensively, the defendant is not thereby deprived of a fair trial so long as the jury is not

prevented from arriving at an impartial judgment on the merits (People v. Adams, 117

AD 3d 104 [1st Dept. 2014]). “That line is crossed when the judge takes on either the

function or appearance of an advocate at trial” (People v. Arnold, 98 NY2d 63 [2002]).

Here, defendant cites several instances in which the trial court overstepped its

bounds and took on the function of an advocate. But examination of those instances,

in context, reveals that the court acted within its authority. For-example, defendant

points to the following exchange:

THE COURT: Hold on. Did you ever get into Bobby’s

apartment?

WITNESS: Yeah. After when you see me talking to the guy

with the red hat, me and him are talking, I go back into

Bobby’s apartment, tell him what’s going on.

THE COURT: Okay.

WITNESS: And he comes out with me.

THE COURT: So the only point at which you get into

Bobby’s apartment is after those two people leave?

WITNESS: Exactly. After the whole situation happened,

that’s when I get in.

THE COURT: Okay. So counsel, you are asking him how

much of the People he knows was in Bobby’s apartment at

the time he had gotten—

It is clear that this line of questioning was meant to clarify testimony and to encourage

the “orderly expeditious progress of trial” (see Parker, 197 AD3d at 141). It was not

meant to take on the position of an advocate, nor was it so intrusive that it actually did

so (see People v. Mitchell, 184 AD3d 875 [2d Dept. 2020] [new trial ordered where judge

questioned witnesses until they were able to positively identify defendant as the

NY2d at 712). So-called errors in representation will be tolerated so long as the overall

representation can be characterized as “meaningful.” (.People v. Morrell, 12 NY3d 365,368

[2009]). A defense counsel’s decisions in “making strategic and tactical decisions” is

objectively evaluated ... to determine whether it was consistent with strategic

decisions of a ‘reasonably competent attorney” (People v. Oathout, 21 NY3d 127, 132

[2013] [internal citations omitted]). And, a defendant is not denied the effective

assistance of counsel “merely because counsel does not make a motion or argument

that has little or no chance of success” (People v. Stul% 2 NY3d 277, 287 [2004]).

Although state claims of ineffective assistance eschew the rigid two-prong federal

standard, in lieu of a flexible approach (see People v. Henry, 95 NY2d 563 [2000]),

prejudice, or lack thereof, is nonetheless a “significant . . . element in assessing

meaningful representation” and courts should rightfully be “skeptical of an ineffective

assistance of counsel claim absent any showing of prejudice” (see People v. Stulti5 2 NY3d

277, 284 [2004]). Moreover, the prejudice component of ineffective assistance under

the state constitution “focuses on the fairness of the process as a whole, rather than any

particular impact on the outcome of the case” (People v. Yagudayev, 91 AD3d 888 [2d

Dept. 2012]).

Here, defendant has failed to show that he was prejudiced by counsel’s failure to

object to the trial court’s questioning of witnesses. He has not shown that the Second

Department would have reversed his conviction and ordered a new trial had the issue

been properly preserved. As discussed, the trial court’s questioning of the witnesses did

not exceed impermissible bounds, but remained within the court’s province to clarify

confusing testimony and ensure the expeditious progress of the trial. Accordingly, there

is no reasonable possibility of a different outcome had defense counsel objected, and

so counsel was not ineffective, especially when viewed in the entirety of his

representation, for not objecting.

In sum, defendant’s claim that the trial court excessively interfered in the

questioning of witnesses is, procedural^ barred and, in any event, without merit.

Defendant’s claim that he was denied the effective assistance of counsel, while not

procedurally barred, is also without merit, as he has failed to show that his conviction

would have been reversed on appeal had the issue been properly preserved.

Accordingly, defendant’s motion to vacate his judgment of conviction is denied in its

entirety.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order

to counsel for the defendant and to the District Attorney.

March 17, 2022

CASSANDRA M. MULLEN, J.S.C.

11 .

SUPREME COURT - STATE OF NEW YORK

CRIMINAL TERM, K20 - QUEENS COUNTY

125-01 QUEENS BOULEVARD

KEW GARDENS, NY 11415

P R E S E N T:

HONORABLE CASSANDRA M. MULLEN

JUISTICE OF THE SUPREME COURT

THE PEOPLE OF THE STATE OF NEW YORK

DECISION AND

ORDER OF THE

COURT

against -

Ind. No.: 2916/2013

ANDREW FIELDS,

Decision on Motion to

Vacate Judgment /

Defendant

APPEARANCE OF COUNSEL

For the People:

Melinda Katz, District Attorney, Queens County

(Lucy E. Pannes, Esq., of Counsel)

For the Defendant:

Defendant, Pro Se

For the Motion

The following constitutes the opinion, decision, and order of the Court:

By his pro se motion dated April 21, 2024, the Defendant seeks an order of the

Court to vacate his judgment of conviction and set aside his sentence. In support thereof,

the Defendant argues: (1) that he was denied his right to effective assistance of counsel

at trial, (2) that his Sixth Amendment right to confront witnesses was violated when the

People failed to call Sergeant Frank Demma to testify at trial, and (3) that he is actually

innocent of the charges for which he was convicted after trial. In response, the People

have filed an Affirmation in Opposition to Defendant’s Motion (hereinafter, the

“People’s Aff”), dated June 10, 2024. Therein, the People assert that the Defendant’s

claims are procedurally barred and without merit.

Upon the foregoing papers, and due deliberation had, the Defendant's pros,

motion to vacate his judgment of conviction and to set aside the sentence thereon, under

C.P.L. §440, is denied in all respects for the reasons set forth below.

WPT FVANT PROCEDURAL HISTORY

On August 30, 2013, at approximately 3:30 p.m., inside of 106-35 159* Street,

J amaica, Queens

County, complainant, Donald Bradley, was robbed at gunpoint by two

individuals, acting in

concert with one another. On that date, the Defendant punched the

victim and placed him in a

chokehold, causing him to lose consciousness, while co

Defendant, Marly Senat, pointed a gun at the victim. The victim’s car keys, cell phone,

and U.S. currency were stolen from him during this encounter. As part of the subsequent

police investigation

into the incident, two video surveillance videos (each depicting

moments immediately before and after the robbery) were recovered. Sgt. Frank Demma,

of NYPD’s 103rd Precinct, recognized the Defendant as one of the assailants depicted in

the surveillance videos. On September 17, 2013, the Defendant was observed by police

(with co

Defendant Senat seated in the passenger seat) driving a stolen vehicle. When

police attempted to stop the car, the Defendant continued driving away from police until

he crashed the vehicle, causing it to come to a stop . After a brief foot pursuit of the

Defendant, he was apprehended by police. His co-Defendant was then removed from

the

crashed vehicle and apprehended. Officers then recovered a loaded handgun

utilized in the robbery. Both Defendants were

matching the description of the gun

identified by the victim on September 18, 2013.

Thereafter, die Defendant was charged by Indictment with Robbery in the First

Degree (P.L. § 160.15[4]), two

counts of Robbery in the Second Degree (P.L. § 160.10[1],

[2] [a]), Strangulation in the Second Degree (P.L. § 121.12), two counts of Criminal

Possession of a Weapon in

the Second Degree (P.L. § 265.03[l][b], [3]), and Criminal

Possession of Stolen Property in the Fourth Degree (P.L. § «5.45[5]). Following pretrial suppression hearings, the

application to suppress

Honorable Steven Paynter denied the Defendants

the pre-trial identification procedures. Judge Marcia Hirsch

denied the Defendant’s separate pre-trial morion to sever the robbery charges from the

stolen property and weapon possession charges, holding that same were properly joined

pursuant to C.P.L§ 200.20.

The Defendant then proceeded to trial before the Honorable Ronald D. Hollie,

and a jury. At the

conclusion thereof, the Defendant was found guilty of all charges. On

July 21, 2015, the Defendant was

fifteen years for each count

of first and second-degree robbery and second-degree

criminal possession of a weapon.

prison term

sentenced to concurrent determinate prison terms of

The Defendant was also sentenced to a determinate

of seven years for the second-degree strangulation conviction, and one-year

imprisonment

for the criminal possession of stolen property in the fifth-degree

another and

conviction. The Defendant’s sentences were to run concurrent to one

followed by post-release supervision.

In March 2017, the Defendant appealed his conviction to the Appellate Division,

Second Department. In that appeal, the Defendant made the following three claims: (1)

that the Court excessively interfered at trial, thereby denying him his due process right

to a

fair trial; (2) that the trial court erred in denying his motion to sever the robbery

charges from the gun possession charges; and (3) that the trial court erred in denying his

request for a

responded to

missing witness charge. (People’s Aff. at 1 12). The People, in turn,

the Defendant’s claims, arguing that they were unpreserved and without

merit. In June 2018, die Defendant filed a pm se supp lemental brief, wherein he alleged

two more claims

failing to pro

. The Defendant alleged that the People committed a Brady violation in

vide him with Mr. Bradley’s medical report in a timely manner and that die

evidence convicting him of Robbery in the First and Second Degrees was legally

insufficient. The Defendant also reiterated his claim that the Court erred m not severing

the charges oudined above. Thereafter, die People filed a supplemental brief wherein

they addressed the claims of a Brady violation and legal insufficiency of charges. In short,

the People argued diat same were proceduraUy barred and without merit. (People s Aff.

at 116-17). On November 21,2018, the Appellate Division, Second Department, denied

the Defendant’s application in all respects and affirmed his conviction. {People v. Fields,

166 A.D.3d 897 [2d Dept. 2018]). (People’s Aff. att 19).

On December 2,2018, the Defendant, through counsel, moved for leave to appeal

to the Court of Appeals. Again, the People opposed the application . On March 4, 2019,

the Court of Appeals denied the Defendant’s application. (People v. Fields, 32 N.Y.3d 1204

[2019])

On March 27, 2019, the Defendant again moved, pro se, for the Court to

reconsider its March 4, 2019 decision. The People again opposed same by letter dated

May 7, 2019. The Court of Appeals renewed its previous denial in an order dated May

28, 2019. (People’s Aff. at % 22-23).

Following the Court of Appeals’ denial, the Defendant filed Ms first pro se motion,

to vacate judgment on July 19,2021, pursuant to C.P.L. § 440.10. Therein, the Defendant

again alleged that

the trial court interfered in questioning witness, thereby denying him

the right to a fair trial. He also alleged ineffective assistance

opposition papers

dated December 7, 2021, the People argued: (1) that the claim of the

trial court’s interference was

assistance

of counsel. In dieir

procedurally barred and (2) that the claim of ineffective

of counsel was meritless. (People’s Aff. at 125-26). In his Reply dated January

11, 2022, the Defendant relied on the amendment to

C.P.L. § 440.10(2)(c), “which

permitted such a claim notwithstanding the fact that sufficient facts appeared on the

record to permit appellate review,” to argue

claim was not

that his ineffective assistance of counsel

procedurally barred. (People’s Aff. at 1 27). This Court’s decision and

order, dated March 17, 2022, summarily denied the Defendant’s motion. In particular,

this Court held that the Defendant’s

“claim that the trial court excessively interfered m

the questioning of witnesses is procedurally barred and, in any event, without ment.

Defendant’s claim that he was denied the effective assistance of counsel, while not

procedurally barred, is also without merit, as he has failed to show that his conviction

would have been reversed on appeal had the issue been properly preserved.’ (3/17/2022

Decision at U). In response, the Defendant, by letter dated April 28, 2022, moved, pro

se,

for leave to appeal to the Appellate Division, Second Department for

“reconsideration” of this decision. The People opposed same by letter, dated July 18,

2022. The Appellate Division, Second Department, in an order dated August 5, 2022,

denied the Defendant’s application.

CURRENT MOTION

In motion papers dated March 29, 2024, the Defendant,pro se, seeks to vacate the

judgment of conviction in this case based on three separate claims. First, the Defendant

argues that tdal counsel was ineffective for failing to object to the trial court s

“excessive

d prejudicial questioning of trial -witnesses” pursuant to C.P.L. § 440.10(1) (It). (Def.

Aff. at 12). Next, the Defendant argues that his Sixth Amendment right to confront

witnesses was violated when the People did not call Sgt. Demma (who recognized the

Defendant from the recovered surveillance videos) to testify at trial. (Def. Aff. at 13,15).

Lastly, the Defendant argues that he is actually innocent. In support of the third claim,

the Defendant alleges ‘‘police misconduct” due to Sgt. Demma’s failure to testify and

relies on the Affidavit of his co-Defendant, Marly Senat, who claimed responsibility for

the robbery. (Def. Aff. at 16-19).

The People submitted an A ffirmation in Opposition to Defendant’s Motion to

Vacate Judgement and to Set Aside the Sentence on June 10, 2024. The People oppose

the Defendant’s “motion in its entirety because his claims were raised on direct appeal,

or before this Court in his first motion to vacate, and are otherwise meritless.” (People’s

Aff. at H 34). C.P.L. § 440.10(2)(a), (c).

The Defendant is currendy incarcerated pursuant to the judgment of conviction.

DECISION

Pursuant to section 440.10(2)(b) of the Criminal Procedure Law, a court must

deny a motion to vacate judgment when the judgment is, at the time of the motion,

appealable or pending on appeal, and sufficient facts appear on the record with respect

to the ground or issue raised upon the motion to permit adequate review thereof upon

such an appeal. Furthermore, pursuant to C.P.L. § 440.10(2)(c), a court must deny a

motion to vacate a judgment when although sufficient facts appear on die record on die

proceedings undedying the judgment to have permitted, upon appeal from such

judgment, adequate review of the ground or issue raised upon the motion, no such

appellate review or. determination occurred, owing to the Defendant’s unjustifiable

failure to take or perfect an appeal during the prescribed period, or to his unjustifiable

failure to raise such ground or issue upon an appeal actually perfected by him.

Furthermore, C.P.L. § 440.30(4)(b) states that, “Upon considering the merits of

the motion,

the court may deny it witiiout conducting a hearing if the motion is based

upon the existence or occurrence of facts and the moving papers do not contain sworn

allegations substantiating or tending to substantiate all the essential facts, as required by

subdivision one.” Similarly, if “an allegation of fact essential to support the motion (1) is

contradicted by a court record or other official document, or is made solely by the

defendant and is unsupported by any other affidavit or evidence, and (ii) under these

and all the other circumstances attending the case, there is no reasonable possibility’

that such allegation is true,” the Court may also deny a motion without conducting a

hearing. (N.Y. Criminal Procedure Law § 440.30(4)(d) McKinney 2020).

TWendant’s Claims of Ineffective Assistance of Counsel

The

United States Supreme Court has codified that for a finding of ineffective

assistance of counsel under the Sixth Amendment, the defendant must establish: (1) that

his attorney committed errors so egregious that he did not function as counsel within the

meaning of the

Sixth Amendment and (2) that counsel’s deficient performance actually

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668 (1984).

As articulated by the New York Court of Appeals, the constitutional requirement

of effective assistance of counsel is met under New York law when “the evidence, the

law

and the circumstances of a particular case, viewed m totality and as of the time of

representation, reveal that the attorney provided meaningful representation.” People v.

Benevento, 91 N.Y.2d 708, 712 (1998). The Court continues, “[w]e have similarly noted

that a

claim of ineffective assistance of counsel will be sustained only when it is shown

that counsel partook

“an inexplicably prejudicial course.” Id., at 713 (citing People v

Zaborski, 59 N.Y.2d 863 [1983]). Moreover, there is a strong presumption in favor of

effective assistance. See People v. Myers, 220 A.D.2d 461 (2d Dept. 1995); w also People v.

Baldi, 54 N.Y. 2d 137 (1981).

Here, the Defendant renews the claim that his trial attorney was ineffective

because counsel failed to object to what the Defendant deems to be “the ongoing making

of the record by trial judge ... [or] to submit a motion to put a stop to the remarks and

conduct of the trial judge.” (Def. Aff. at 11). Moreover, the Defendant asserts that:

“the full magnitude of the courts conduct, and reveal the extensive and

excessive question the trial judge presented to the trial’s witnesses,

coupled with defense counsel failing to make the appropriate [ojbjection

to protect the Defendant from being violated of his [d]ue [p]rocess and

not [amending tire court of its errors constitute a set of circumstances this

court should not [i]gnore. The courts remarks and conduct and resulting,

fallout was extremely prejudicial, necessitating a new trial. (Def. Aff. at

13).

First, the Court finds that the Defendant’s claim of ineffective assistance of counsel

involves solely on-the-record matters and thus, is procedural^ barred from this Court’s

review, as sufficient facts appear on the record to permit adequate review of these

issues on direct appeal. Second, the Court agrees with the People that the Defendant

has failed to articulate any new and/or off-the-record allegations to support his current

motion to vacate based on this clairh. C.P.L. § 440.30(4)(d). Finally, C.P.Lr §

440.10(3) (b) clearly states that “the court may deny a motion to vacate a judgment

when, die ground or issue raised upon the motion was previously determined on the

merits upon a prior motion or proceeding.” This Court previously ruled on the merits

of this very claim, in its March 17,2022 decision, wherein this Court held that the

Defendant failed to establish that his attorney was ineffective. In particular, this

Court’s March 17, 2022, decision held that the Defendant “failed to show that he was

prejudiced by counsel’s failure to object to the trial court’s questioning of witnesses. He

has not shown that the Second Department would have reversed his conviction and

ordered a new trial had the issue been properly preserved.” (3/17/2022 Decision at

10).

Therefore, the Court finds this claim to be procedurally barred and, in any event,

with merit.

II.

Defendant’s Confrontation Claim.

Next, the Defendant claims that the fact that Sgt. Demma did not testify at trial

constitutes a violation of his constitutional Sixth Amendment right to confront witnesses

against him. (Def. Aff. at 13). In support of this claim, the Defendant further argues that

“knowing, that any officer, who comes across or interviews a witness and/or is the

[ijnitial [identified in a criminal case [h]as to be subpoenaed.” Therefore, the failure to

call Sgt. Demma to the witness stand constituted an “extreme violation of [his] right of

[d]ue [pjrocess. (Def. Aff. at 15). Pursuant to CP.L. § 440.10(2)(c) a court “must deny a

motion to vacate a judgment of conviction where ... there were sufficient facts on the

record which would have permitted appellate review of the issue on direct appeal, but no

review occurred owing to the defendant’s unjustifiable failure to perfect a direct appeal

... or to his ... unjustifiable failure to raise such ground or issue upon an appeal actually

perfected by him.” (Emphasis added). In this instance, the Defendant failed to raise this

record-based claim on his direct appeal.

Even assuming, arguendo, that this claim was not procedurally barred, the

Defendant’s assertion that he had a constitutional right to confront Sgt. Demma, is

incorrect. The U.S. Supreme Court, in Crawford v. Washington, 541 U.S. 36 (2004), held

that “testimonial statements of witnesses absent from trial have been admitted only

where the declarant is unavailable, and only where die defendant has had a prior

opportunity^ to cross-examine.” In this instance, the People did not call Sgt. Demma as a

witness at the Defendant’s trial, nor did they rely on his testimony to identify the

Defendant. Instead, “the People called the victim, Donald Bradley, who identified [the

Defendant in a line-up and at trial, as the person who robbed and strangled him.”

(People’s Aff. at p. 23-24). The Defendant,; through counsel, was then afforded the

opportunity' to cross-examine Mr. Bradley. Since the People did not admit testimonial

statements nor the identification of the Defendant made by Sgt. Demma into evidence,

the Defendant’s constitutional rights under the Confrontation Clause were not infringed

upon in the instant matter. See People v. Lin, 28 N.Y.3d 701 (2011).

Therefore, in accordance with C.P.L. § 440.10(2)(c), the Court denies the

Defendant’s second claim, as it is also procedurally barred.

clear and convincing evidence that the defendant is innocent ... The constitutional

violation on a claim of actual innocence is that the defendant is subject to a criminal

conviction while he or she is in fact innocent. Mere doubt as to the defendant's guilt, or

a preponderance of conflicting evidence as to the defendant's guilt, is insufficient, since

a convicted defendant no longer enjoys the presumption of innocence, and in fact is

presumed tQ be guilty. [Furthermore] a prima facie showing of actual innocence is

made out when there is ‘a sufficient showing of possible merit to warrant a fuller

exploration’ by the court.” Furthermore, innocence claims made pursuant to C.P.L.

440.10(1) (g) require new evidence to have been discovered since the Defendant’s

conviction before a court may vacate a judgment of conviction. This “new evidence”

“could not have been produced by the defendant at the trial even with due diligence on

his part and ... is of such character as to create a probability that had such evidence

been received at the trial the verdict would have been more favorable to the

defendant.” C.P.L. 440.10(1) (g).

In this case, the Defendant has failed to substantiate a claim under both C.P.L.

44Q.10(l)(g) and C.P.L. 440.10(l)(h). Specifically, the co-Defendant’s Affidavit does not

exculpate the Defendant’s role in this incident. Nor does it state that the Defendant was

not present during the crime, that Mr. Senat acted alone, or that someone else was

responsible for the charged crimes. So too, the Defendant’s application to this Court

does not allege any new evidence being discovered since his conviction which would

III.

Defendant’s Claim of Actual Innocence.

Finally, the Defendant argues that this Court should vacate his judgment of

conviction because he is actually innocent of the aforementioned charges. In support of

this claim, the Defendant included an Affidavit in Support, signed by co-Defendant

Marly Senat and dated April 2, 2014, in the current motion. As acknowledged by the

Defendant himself, said Affidavit was executed by the cO-Defendant and submitted by

the Defendant a year prior to die Defendant’s trial. In his Affidavit in Support, coDefendant Senat wrote:

“I, Marly Senat, takes and accepts full responsibility for the abovementioned crimes & offenses for which I have been charged. I

acknowledge and admit that the weapon was in my sole possession as

well as the stolen property. I make this Affidavit under my own free-will,

free of any duress, pressure, or coercion. I am also fully aware of what I

am doing and of the legal ramifications of such.” (Def. Aff. at 21).

In addition, the Defendant, widiout any supporting documentation and/or evidence,

alleges that Sgt. Demma made false out-of-court statements in order to ensure his

arrest. Lastiy, the Defendant asserts diat he is not the individual captured in the

surveillance videos obtained by police and introduced into evidence at trial. (Def. Aff.

at 18).

Claims of actual innocence must be raised pursuant to C.P.L. § 440.10(1) (h).

People v. Hamilton, 115 A.D.3d 12 (2014). In Hamilton, the Appellate Division, Second

Department, held that “with respect to a claim of actual innocence, as distinguished

from a specific constitutional violation, a constitutional violation occurs only if there is

substantiate his. claims of actual innocence. In any event, this claim is procedurally barred

as die Defendant could have raised it previously but failed to do so.

Therefore, the Defendant’s motion under a claim of actual innocence is denied

pursuant to sections 440.10(1) (g) and (h) of the Criminal Procedure Law.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order

to the attorney for the defendant and to the District Attorney.

July 15, 2024

CASSANDRA M. MULLEN, J.S.C

won. Cassandra mullen

. V.

SUPREME COURT - STATE OF NEW YORK

CRIMINAL TERM, PART K-20, QUEENS COUNTY

125-01 QUEENS BOULEVARD

KEW GARDENS, NEW YORK 11415

P R E S E N T:

HONORABLE CASSANDRA M. MULLEN

JUSTICE OF THE SUPREME COURT

THE PEOPLE OF THE STATE OF NEW YORK,

-agamst-

DECISION AND

ORDER OF THE

COURT

Queens County

Ind. No.: 2916/13

Motion to Vacate

the Judgment of

Conviction

. ANDREW FIELDS,

Defendant.

Defendant Andrew Fields stands convicted, after a jury trial, of first-degree

robbery and other related crimes, arising from two separate incidents. In the first

incident, he and co-defendant Marly Senat robbed Donald Bradley at gunpoint on

August 30, 2013. Then, on September 17, 2013, defendant and Senat sped away from

police when the police attempted to pull the two over for driving a stolen car with a

gun inside. Following his conviction for these crimes, the court sentenced defendant,

as a second violent felony offender, to an aggregate prison term of fifteen years, and his

SR 368

judgment of conviction was affirmed on appeal {People v. Fields, 166 AD3d 897 [2d Dept.

2018] Iv. denied32 NY3d .1204 [2019]).

Defendant now moves,pro se, to vacate his judgment of conviction under section

440.10 of the Criminal Procedure Law. For the reasons that follow, his motion is

denied.

BACKGROUND

On August 30, 2013, Donald Bradley was visiting a friend inside an apartment

building at 106-35 159th Street, Queens County, when defendant jumped out from

behind him and punched Bradley in the face. The two struggled, and defendant put

Bradley in a headlock while continuing to punch him. Co-defendant Senat then stepped

out in front of Bradley and pointed a firearm at him and told him to be quiet. Still in

the headlock, Bradley stopped struggling when he saw the gun but nonetheless lost

consciousness. As he passed out, he felt defendant and co-defendant Senat rummaging

through his pockets and later discovered that they had taken his money, wallet, cell

phone and car keys.

On September 17, 2013, police saw defendant and co-defendant Senat driving a

stolen 2006 minivan. The police attempted to pull defendant over, but he sped up and

lost control of the car, ultimately crashing into the fence of a residential area. The police

then arrested defendant.

Following his arrest, defendant was charged with these two incidents. For these

crimes, he was charged with Robbery in the First Degree (Penal Law § 265.15 [4]), two

SR 369

counts of Robbery in the Second Degree (Penal Law § 160.10[1], [2][a]), Strangulation

in the Second Degree (Penal Law § 121.12), two counts of Criminal Possession of a

Weapon in the Second Degree (Penal Law § 265.03[l][b], [3], and Criminal Possession

of Stolen Property in the Fourth Degree (Penal Law § 165.45[5]).

He then proceeded to trial before a justice of this court, and a jury. Upon

conclusion of the trial, the jury convicted defendant of all charges. On July 21, 2015,

the court sentenced defendant to an ag8re8ate prison term of fifteen years.

Defendant then appealed his judgment of conviction to the Appellate Division,

Second Department. In his appeal, he argued, inter alia,, that the trial court excessively

with the examination and cross-examination of the witnesses, thereby depriving him of

a fair trial. The People opposed defendant’s claim, arguing that this claim was not

preserved and, in any event, without merit as the trial court acted within its province to

clarify confusing testimony, and otherwise did not usurp the role of the prosecutor.

In a decision and order dated November 21, 2018, the Second Department

affirmed defendant’s judgment of conviction (People v. Fields, 166 AD3d 897 [2d Dept.

2018]) k denied 32 NY3d 1204 [2019]. In its decision, the Court did not specifically

address defendant’s claim that the trial court excessively interfered in the trial. Instead,

it dismissed that claim along with several others as unpreserved and declined to review

those claims in the interest of justice {id. at 898).

SR 370

The Current Motion

In his current motion, defendant, pro se, moves to vacate his judgment of

conviction under CPL 440.10, claiming that the trial court excessively interfered with

the trial by its questioning of the witnesses. In support of this argument, he cites several

instances in which the trial court questioned the witnesses. Defendant also claims that,

he was denied the effective assistance of counsel, owing to counsel’s failure to preserve

this issue for appellate review.

In a response dated December 7, 2021, the People oppose defendant’s motion.

First, the People argue that defendant’s claim regarding the court’s conduct is

procedurally barred as one that should have been raised on appeal. With respect to

defendant’s ineffective assistance claim, the People argue that, viewing counsel’s

representation in its totality, defendant received the effective assistance of counsel, and

counsel was not ineffective for failing to raise an objection to the court’s otherwise

proper conduct.

In a reply dated January 11, 2022, defendant contends that his claims present a

“mixed claim,” with matters appearing both on the record and off the record, and so

appropriately raised in a post-conviction motion. He also argues that his claims are not

procedurally barred as a recent amendment to the CPL 440; 10(2) (c) permits review of

ineffective assistance claims in a post-conviction motion, notwithstanding that the claim

was reviewable on direct appeal.

SR 371

DISCUSSION

Under section 440.10 of the Criminal Procedure Law, a defendant may, “at any

time after entry of judgment,” move to vacate the judgment of conviction based on

several enumerated grounds. Such motions, however, “must” be denied when

“sufficient facts appeared on the record” to have permitted adequate appellate review

of the ground or issue raised, but no such review took place “owing to the defendant’s

... unjustifiable failure to raise such ground or issue upon an appeal” (CPL 440.10[2][cj).

In other words, “defects that can be raised on direct appeal in that way or not at all”

people v. Cuadrado, 9 NY3d 362, 365 [2007]). “The purpose of this provision is to

prevent CPL 440.10 from being employed as a substitute for direct appeal when [the]

defendant was in a position to raise an issue on appeal” {People v. Cooks, 67 NY2d 100,

103 [1986]). Where a motion is not procedurally barred, however, a court may still deny

a motion to vacate a judgment of conviction without a hearing where, among other

grounds, the papers do not state a legal basis entitling the defendant to relief (CPL

440.30[4][a]).

Here, sufficient facts appeared on the record so as to permit appellate review of

defendant s claim that the trial court impermissibly took on an active role in the direct

and cross-examination of witnesses. As such, this claim was reviewable on appeal and

therefore procedurally barred under CPL 440.10(2)(c). In supporting this claim,

defendant points entirely to interactions between the court. For example, he alleges

that, “Throughout the. trial, the supreme court conducted excessive and prejudicial

SR 372

questioning of trial witnesses” (Defendant’s Motion at 11), and that “the court asked

over 350 fact specific questions even though there was rarely any need to clarify their

testimony” (Defendant’s Motion at 12). He bases this claim entirely on exchanges

between the court, the witnesses, and the attorneys that occurred at trial (Defendant’s

Motion at 12-17), and otherwise presents no issues or facts that appeared “off the

record.” And in fact, defendant actually did raise this claim on appeal, but the Second

Department dismissed it as unpreserved. Post-conviction motions under CPL 440 do

not exist to circumvent either the appellate process or the preservation requirement (.see

Cooks, 67 NY2d at 103).

Moreover, even if this Court were to entertain the merits of defendant’s motion,

it would nonetheless be denied without a hearing (see CPL 440.30[1]). Under CPL

440.30(4][a], a court may deny a post-conviction motion when “the moving papers do

not allege any ground constituting legal basis for the motion.”

Defendant claims that the trial court impermissibly interfered with the

examination of the witnesses. The Court of Appeals has “recognized the Trial Judge’s

vital role in clarifying confusing testimony and facilitating the orderly expeditious

progress of trial,” but has cautioned that such power “is one that should be exercised

sparingly” (People v. Yut Wai Tom, 53 NY2d 44 [1981]). A trial judge is there expected

“to protect the record, not to. make it” {id. at 58). Further, “even if a trial judge makes

intrusive remarks that would better have been left unsaid, or questions witnesses

extensively, the defendant is not thereby deprived of a fair trial so long as the jury is not

SR 373

;

the merits” (People v. Adams, 117

prevented from arriving at an impartial judgment on

AD3d 104 [1st Dept. 2014])

function or appearance

“That line is crossed when the judge takes on either the

of an advocate at trial” {People v.

Here, defendant cites several instances

bounds and took on the function

Arnold, 98 NY2d 63 [20021).

in which the trial court overstepped its

of an advocate. But examination of those instances,

in context, reveals that the court acted within its

authority. For example, defendant

points to the following exchange.

on. Did you ever get into Bobby’s

THE COURT: Hold

apartment?

WITNESS: Yeah. After when you see me talking to the guy

talking, I go back into

with the red hat, me and him are

Bobby’s apartment, tell him what s going on.

THE COURT: Okay.

WITNESS: And he comes out with me.

lw. So the only point at which you get into

THE COURT:

Bobby’s apartment is after those two people leave?

WITNESS: Exactly. After the whole situation happened,

that’s when I get in.

THE COURT: Okay. So counsel, you are asking him how

Bobby’s apartment at

much of the People he knows was in

the time he had gotten

u is clear rirar .his line of questioning was mean. .0 clarify tesrimony and to encourage

of trial” Use Parker, 197 AD 3d at 141). It was not

the “orderly expeditious progress

meant to take on rite position of an advocate, nor was it so intrusive that it acmally did

so {see People

v. Mitchell, 184 AD3d 875 [2d Dept. 2020] [new trial ordered where judge

questioned witnesses until they were able to

positively identify defendant as the

SR 374

perpetrator). Additionally, although defendant contends that the trial court’s excessive

interference was palpable from the 350 times it questioned the witnesses, “it is the

substance and not the number of questions asked that is the important consideration”

(id. at 734).

The Court also notes that, as mentioned, defendant raised this claim on direct

appeal, but the Second Department did not review the merits of this claim because it

was not preserved. As the dissenting justices in Parker, supra, noted, however, that Court

“has consistently reached the issue in the interest of justice despite defense counsel’s

failure to raise objections to the trial court’s interjections” (id. at 145), and cited several

cases in which that court has done so and ordered a new trial, including one, People v.

Sookdeo, 164 AD3d 1268 (2d Dept. 2018)* that was decided merely two months before

that court declined to review defendant’s similar claim (see Fields, 166 AD3d at 898).

lhat the Second Department disinclined to review defendant’s claim in the interest of

justice, when it otherwise found fit to do so in meritorious instances raising similar

claims, suggests that the- court found defendant’s claim unavailing under these

circumstances.

Accordingly, this claim of defendant’s motion is denied as procedurally barred as

one that should-have been raised on appeal and is otherwise""without merit.

Defendant next claims he was denied the effective assistance of counsel, owing

to counsel s failure to object, and therefore preserve the issue for appellate review, the

trial courts interference with the questioning of witnesses. As defendant correctly

SR 375

notes, CPL 440.10(2) (c) was recently amended to permit claims of ineffective assistance

of counsel to be raised in a post-conviction motion, notwithstanding that sufficient

facts may otherwise appear on the record as to permit appellate review. As such, this

claim is not procedurally barred by CPL 440.10(2)(c).

Nonetheless, this branch of defendant’s motion is denied under £PL

440.30(4)(a), as he has not stated a legal basis entitling him to relief. Reviewing

defendant’s ineffective assistance claim on the merits, defendant has failed to show that

counsel’s lack of objecting to the trial court’s actions deprived him the effective

assistance of counsel.

In order to show he was denied the effective assistance of counsel under the

Federal constitution, a defendant must show both that: (1) that counsel’s representation

fell below an objective standard of reasonableness; and (2) that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different {Strickland v. Washington, 466 US 668 [1984]). New York law,

however, eschews the rigid two-prong test under the federal standard, and instead, “the

core of the inquiry is whether defendant received ‘meaningful representation’” {People v.

Benevento, 91 NY2d 708,712 [1998]). A claim of ineffectiveness “is ultimately concerned

with the fairness of the process as a whole rather than its particular impact on the

outcome of the case” {id. at 714).

Further, counsel’s performance “should not be guessed with the clarity of

hindsight to determine how the defense might have been more effective” {Benevento, 91

SR 376

<s^

NY2d at 712). So-called errors in representation will be tolerated so long as the overall

representation can be characterized as “meaningful.” {People v. Borrell, 12 NY3d 365,368

[2009]). A defense counsel’s decisions in “making strategic and tactical decisions” is

“objectively evaluated ... to determine whether it was consistent with strategic

decisions of a ‘reasonably competent attorney” (People v. Oathout, 21 NY3d 127, 132

[2013] [internal citations omitted]). And, a defendant is not denied the effective

assistance of counsel “merely because counsel does not make a motion or argument

that has little or no chance of success” (People v. Stul% 2 NY3d 277, 287 [2004]).

Although state claims of ineffective assistance eschew the rigid two-prong federal

standard in lieu of a flexible approach (see People v. Henry, 95 NY2d 563 [2000]),

prejudice, or lack thereof, is nonetheless a “significant . . . element in assessing

meaningful representation” and courts should rightfully be “skeptical of an ineffective

assistance of counsel claim absent any showing of prejudice” (see People v. Stul% 2 NY3d

277, 284 [2004]). Moreover, the prejudice component of ineffective assistance under

the state constitution “focuses On the fairness of the process as a whole, rather than any

particular impact on the outcome of the case!’ (People v. Yagudayev, 91 AD3d 888 [2d

Dept. 2012]).

Here, defendant has failed to show that he was prejudiced by counsel’s failure to

object to the trial court’s questioning of witnesses. He has not shown that the Second

Department would have reversed his conviction and Ordered a new trial had the issue

been properly preserved. As discussed, the trial court’s questioning of the witnesses did

SR 377

not exceed impermissible bounds, but remained within the court’s province to clarify

confusing testimony and ensure the expeditious progress of the trial. Accordingly, there

is no reasonable possibility of a different outcome had defense counsel objected, and

so counsel was not ineffective, especially when viewed in the entirety of his

representation, for not objecting.

In sum, defendant’s claim that the trial court excessively interfered in the

questioning of witnesses is procedurally barred and, in any event, without merit.

Defendant’s claim that he was denied the effective assistance of counsel, while not

procedurally barred, is also without merit, as he has failed to show that his conviction

would have been reversed on appeal had the issue been properly preserved.

Accordingly, defendant’s motion to vacate his judgment of conviction is denied in its

entirety.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order

to counsel for the defendant and to the District Attorney.

March 17, 2022

CASSANDRA M. MULLEN, J.S.C.

SR 378

->•

Supreme (ttourt nf tt|e ii>tate nf

fork

Appellate Hiutsion : 0ecmtii 3luMctal department

M284310

SL/

REINALDO E. RIVERA, J,

2022-03918

DECISION & ORDER ON APPLICATION

The People, etc., plaintiff,

v Andrew Fields, defendant.

(Ind. No. 2916/2013)

Application by the defendant pursuant to CPL 450.15 and 460.15 for a certificate

granting leave to appeal to this Court from an order of the Supreme Court, Queens County, dated

March 17, 2022, which has been referred to me for determination.

Upon the papers filed in support of the application and the papers filed in opposit ion

thereto, it is

ORDERED that the application is denied.

REINALDO E. RIVERA

Associate Justice

August 5, 2022

PEOPLE v FIELDS, ANDREW

SR 395

-sS’'

J-*

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-r

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£tate of Beto gorlt

Court of appeals

BEFORE: LESLIE E. STEIN, Associate Judge

THE PEOPLE OF THE STATE OF NEW YORK,

-against-

Respondent,

ANDREW FIELDS,

ORDER

DENYING

LEAVE

Appellant.

Appellant having applied for leave to appeal to this Court pursuant to Criminal Procedure

Law § 460.20 from an order in the above-captioned case;*

UPON the papers filed and due deliberation, it is

ORDERED that the application is denied.

Dated:

at Albany, New York

Associate Judge

°f °rden °rder °fthe APPellate Division, Second Department, dated November

21,2018, affirming a judgment of the Supreme Court, Queens County, rendered July 21 ,2015.

CO TOC

£tate of Beta Jgorft

Court of appeals

<£f/4> rs

BEFORE: LESLIE E. STEIN, Associate Judge

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

-against-

ORDER

DENYING

RECONSIDERATION

ANDREW FIELDS,

Appellant.

Appellant having moved for reconsideration in the above-captioned case of an application

for leave to appeal denied by order dated February 19,2019;

UPON the papers filed and due deliberation, it is

ORDERED that the motion for reconsideration is denied.

Dated:

at Albany, New York

Associate Judge

; v.

SR 314

I-

Bupvzmt dkmrt of ttye ^tate of Mem ^ork

appellate ItutBum: #£cotid SuMcfal leparlment

D57371

Q/htr

AD3d

Submitted - October 23,2018

WILLIAM F. MASTRO, J.P.

SANDRA L. SGROI

COLLEEN D, DUFFY

HECTOR D. LASALLE, JJ.

DECISION & ORDER

20L5-07353

The People, etc,, respondent,

v Andrew Fields, appellant.

(Ind. No. 2916/13)

Steven A. Feldman, Uniondale, NY, for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,

lohxmette Traill, Merri Turk Lasky, Nancy Fitzpatrick Talcott, and Mariana Zetig of

counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County

(Ronald D. Hollie, J.), rendered July 21,2015, convicting him of robbery in the first degree, robbery

in the second degree (two counts), strangulation in the second degree, criminal possession of a

weapon in the second degree (two counts), and criminal possession of stolen property in the fifth

degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was tried with a codefendant for various crimes arising out of a

gunpoint robbery of an individual in a Queens apartment building and possession of a firearm

thereafter while occupying a vehicle that had been reported stolen. Following a jury trial, the

defendant was convicted of robbery in the first degree, two counts of robbery in the second degree,

strangulation in the second degree, two counts of criminal possession of a weapon in the second

degree, and criminal possession of stolen property in the fifth degree.

We agree with the Supreme Court’s denial of the defendant’s motion to sever the

robbery and weapons possession counts. These counts in the indictment were properly joined, since

November 21,2018

Page I.

PEOPLE v FIELDS, ANDREW

SR 249

the nature of the evidence for each of the offenses was material and admissible as evidence upon the

trial of the other counts in the indictment (see CPL 200.20[2][b]; People v Bongarzone, 69 NY2d

892,895). As the offenses were properly j oined in one indictment from the outset pursuant to CPL

200.20(2)(b), the court lacked the statutory authority to sever them (see CPL 200.20[3]; People v

Bongarzone, 69 NY2d at 895; People v Senat,__ AD3d

2018 NY Slip Op 06573 [2d Dept

2018]; People v Bonilla, 111 AD3d 985, 986).

We also agree with the Supreme Court's denial of the defendant’s motion for a

missing witness charge as to the robbery victim’s friend, who allegedly saw the victim shortly after

the robbery. As conceded by the defendant, the request for the missing witness charge was untimely

(see People v Joseph, 161 AD3d 1105, 1105; People v Mancusi, 161 AD3d 775, 776; People v

Sealy, 35 AD3d 510, 510). Moreover, the defendant failed to show that the witness was

knowledgeable about a material issue in the case and would be expected to provide noncumulative

testimony favorable to the prosecution (see People v Edwards, 14 NY3d733,735 , People vLocenitt,

157 AD3d 905,907).

The defendant’s contentions, raised in his pro se supplemental brief, that the verdict

of guilt was not supported by legally sufficient evidence and was against the weight of the evidence,

are without merit. Viewing the evidence in the light most favorable to the prosecution (see People

v Contes, 60 N Y2d 620,621), we find that it was legally sufficient to establish the defendant’s guilt

beyond a reasonable doubt (see People v Danielson, 9 NY3d 342,349). Moreover, in fulfilling our

responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5];

People v Danielson, 9 NY3d at 348-349), we nevertheless accord great deference to the jury’s

opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo,

2 NY3d 383,410; People v Bleakley, 69 NY2d 490,495). Upon reviewing the record here, we are

satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero,

7 NY3d 633).

The defendant’s remaining contentions, including those raised in his pro se

supplemental brief, are unpreserved for appellate review (see CPL 470.05[2]; People v Geritano, 158

AD3d 724, 724; People v Jimenez, 148 AD3d 1054,1054; People v Gough, 142 AD3d 673, 675;

People v Whitfield, 181 AD2d 752,752), and we decline to consider them in the interest ofjustice.

MASTRO, J.P., SGROI, DUFFY and LASALLE, JJ., concur.

ENTER:

Aprilanne AgoStino

Clerk of the Court

November 21,2018

PEOPLE v FIELDS, ANDREW

sr’M

Supreme (Eoart of tljr Btntt of

fork

Appellate iiutmon: Retook 3uktrial lepartment

M264292

kbp/

WILLIAM F. MASTRO, J.P.

ROBERT J. MILLER

COLLEEN D. DUFFY

HECTOR D. LASALLE, JJ.

DECISION & ORDER ON MOTION

2015-07353

The People, etc., respondent,

v Andrew Fields, appellant.

(Ind. No. 2916/13)

Motion by Andrew Fields for leave to reargue an appeal from a judgment of the

Supreme Court, Queens County, rendered July 21, 2015, which was determined by decision and

order of this Court dated November 21,2018.

Upon the papers filed in support of the motion and the papers filed in opposition

thereto, it is

ORDERED that the motion is denied.

MASTRO, J.P., MILLER, DUFFY and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

July 12, 2019

PEOPLE v FIELDS, ANDREW

•

"A&

-VV ■

MZfiu£Kffi% <iFrM?/AcMfrhMO>msid

•>

North 1.

ShoreLIJ Huntington Hospital

270 Park A venue

Huntington, NY 11743-27$

Tel (631) 351-2000

www.hunthosp.org

Officers of the Board

>■

Chairman of the Board

Will*,m H. Frazier

Vice Chairman

L. Keith Friediandar. Esq.

Vice Chairman

Michael Aboff

Secretary

Michael J. Alesandro

DELEGATION OF AUTHORITY

Treasurer

Fred J. Buckhoitz

I, Kevin Lawlor, the President

Assistant Treasurer

Clifford Friedman

Cecile O’Brle

Immediate Past Chairman

* Bernard M. Rosof, M.D.

edical Records Clerk, whose signature appears below is

a responsible employee of this Instituti

on. I hereby authorize her to

certify

records of this Institution as the foil and c

omplete record of the condition, act,

transaction, occurrence or event which ha

ve been made in the regular course of

business of this Institution, and it is

in the regular course of business of this

Institution to make such

records at the time of the conditi

ion, act transaction,

occurrence or event, or within a reasonable time thereafter.

President & CEO

Kevin F. Lawlor

Trustees

Carmela Anglim

Christopher Barber

Michael Brown

Michael Buchholtz, M.D.

Martha M. Carlstrom

Michael J. Dowling

Noah S. Finkel. M.D.

J. Ronald Gaudreault

•Anthony T. Giaccone

Michael B. Grosso, M.D

John C. Kean

Richard Kleinknecht

Cary Kravet

Thomas G. Lederer

Shirley Levitt

Patricia C. Marcin, Esq.

Brian McNally

Lewis C. Meltzer, Esq. ■

Anne Marie Miele

Richard Murcott

•Robert J. Myers

Patricia Petersen

John R. Riconda

James N. Romanelli, M D

Dolores R. Thompson

Honorary Trustees

•Louis C. Bemst, Esq.

Richard L. Bove

•Joseph G. Gavin, Jr. 4

Rosalyn C. Gordon

Gordon S. Hargraves 4

Donald R. Head

'Irving Klein

Eugene Levitt Esq. 4

Harry F. Mariani

*lohn McCusker 4

C. Richard McDaniel

Charles E. Murcott 4

Virginia Partrick

Joseph M, Vitale, Esq.

and C.E.O. of Huntington Hospital certify that

THIS DELEGATION OF AUTHORITY Si

BE VALID UNTIL

December 31,2014

Kevin'

Signature of Authorized Employee

:caj

MedUtecAuihorizat ionO ’Brien201A

•Past Chairman of the Board 4 Deceased.

■/

hZSX"

270 Park Avenue

Huntington, New York 11743-2799

(631) 351-2000

www. hunthosp. org

North Shore-Long Island Jewish Health System

Olliccr> of ihc Board

Chairman of ihc Board

ANTHONY GIACCONE

Vice Chaiiwoman

ROSALYN C. GORDON

CERTIFICATION

Vice Chairman

LEWIS S. MtLTZER. ESQ.

I, Cecile O’Brien, the Medical Records Correspondence Clerk of Huntington

Viet- Chainnan

BERNARD M. ROSOF. M.D.

Hospital hereby certify that the record attached is in our custody and is the lull and

Secrelary

HARRY R MARIANI

complete record of the condition, act, transaction,

occurrence of event of this

Institution concerning:

Treasurer

GORDON S. HARGRAVES

A>**isiani Treasurer

V1ICHAEL ABOFF

AS R

President & CEO

KEVIN F. LAWLOR

Trustees

(Name of Patient)

RALPH ALFENITO. M.D.

I.'ARVIELA ANGLIM

CHRISTOPHER BARBER

G. MORGAN BROWNE

FRED J BUCKHOLT2

MICHAEL DOWLING

NOAH S. FINKEL. M.D.

WILLIAM H. FRAZIER

LOYD KEITH FRIEDLANDER

J Ronald gaudreault

MICHAEL B. GROSSO. M.D.

IRVING KLEIN

RICHARD KLEINKNECHT

THOMAS LEDERER

EUGENE I. LEVITT, ESC.

RICHARD A. I.IPPE. ESQ.

BARBARA MAWRA

JOHN McCUSKER

RICHARD DON MONTI

PAL L VIOULINIE. M.D.

Robert j. myers

MARTHA M. OSTERHUS

VIRGINIA PARTR1CK

PAUL REILLY

JOHN R. RICONDA

ROBERTW STACKLER

DOLORES R. THOMPSON

CHARLES TRUNZ. Ill

Ihiimrary Trustees

’ LOUIS C. BliRNST. ESQ

RICHARD L. BOVE

MLRYCRARY

DUNCAN LLDER. ESQ

JOSEPH C. GAVIN. JR.

DONALD R. HEAD

c. Richard McDaniel

' CHARLES I.. MURCOTT

'<>UN I'. ROCHE

JOSi :>n M. \ IT \1.E. H.SQ.

^ II.1.1 '.\i Aonix'oc'K

ly^GNfr.HfcCOCNlTi^

(Address)

further certify that this record was made in the regular course of business of this

institution and it is in the regular course of business of this Institution to make such

record at the time of the condition, act, transaction, occurrence of event, or within

reasonable time thereafter.

I have been authorized to certify these records and I am

authorized on this date.

Date

Pj'i i h.ii hniPi |.| ilie Buartl

*7y

:cdl

MedRecCertO ’Brien2006

Cecile O’Brien

Correspondence Clerk

ate ofNew York

270 PARK AVE

HUNTINGTON, NY 31743

Atlm Medici Records Department

I GREETING:

A certified copy of an

’

^ **

*° ^

Patient's Name: DONALD BRADLEY

. Date of Birlh:

Address:

(

Date ofExamination/Atoission: A„„„„ 30,200

Reason For Examination/Admissi

[If any material in th

on: ASSAULTED

************.......*■ p‘«“ "«i« d». nmtri.1 sod fcnvanJ

You toy ^‘*mS™P°ENA is Oisobeyed"

SSSks^*-

***************

Dated, The City of New ^"odc, Borough and County of Queens"---------lADA:

Bureau:

Phone No.

Email:

****************

FEB 0 3 2014

RACHEL BUCHTER

"sT;^„"r,M*jorcri-

Richard A. Brown

DisMct Attorney. QUeemC

ounty

REBochter@queensda.org

sag

so ORDERED

**»

BRADLEY, DONALD

HUNTINGTON HOSPITAL

ACCOUNT NO.

POA;

PATIENT LAST NAME

BRADLEY

AOORfSS

1 of 21

LW:

first

AGE

___DONALD

CITY

SEX

PLAN

M.S.

REL

EMERGENCY DEPARTMENT

“

GUAR LW NAME

DESCRIPTION

SOC SECURITY

XXX-XX-XYYY

state zip'------------siSnlBEfs—

RACE

NO_______

HEG.OATE

TIME

08/31/13

17 : 4 0

<0MgFHON€

guar fir;

SRADLEV

—

“gPHgC.No:

WORK RHONE

GUARANTOR EMPLOYER

DONALD

bel

BRADLEY,

six

ooa

qroup/pavoh id

DONALD

EMERGENCY CONTACT; NAMe ™

home PHONE

ANCBTTA KING

PRIOR VISIT

MOA

HOSPEMP

SELF PAl

vov

ACCOMPANIED BY

REGISTERED BY

MVA

ACCIDENT DATE

08/30/13

POR VISIT:'

SORE THROAT.,

FAMILY PHYSICIAN: NAME

CHOY,

LAWBKNrr

PHONE

ISOLATION REQUIRED

CIRCLE ONE

PLACE TRIAGE

STICKER

HERE

time

INITIAL

7/me

BRADLEY, DONALD

****59

2 of 21

8/31/13 6:04 PM

ED Triage

Birtli Date

BRADLEY, DONALD

Initial Intaka

[initial Intake-

■sn

! Arrival Modo

.qaoi/aoia 17:5a [Ambulatory ,

Manning, Susan

’

jOffered and declined

2 sat;

106/59

30 Years !

.|'18

[Height jWelnht

i'98.7F

;97% Room air

; [jpain Loviei

,EneU«h

•9 Nrs

tipi....

Ela

|7^in .. Zg-»*9 actuaj

[.Chief Complaint

.Not at risk

Iroko

___ _ _

fAI I o rrj i (3*•

Primary Reaction

' NKA

!Coinjjnent '

Sore Throat

_Juncon»clo», did not call po«ce

Nursing Assosment

52 *,ab wound» I" back, ped mva 9/13/11

l .

Adv. Oiruclivea

none

jspeciji No

none

._____^f0

;no

•lp> waa eftokad until unconadoua last pm

[Medication ,

lPos$

fpreq

Percocet Oral

Ifninqnii

joral

Page: 1/1

Manning, Susan RN

Dop»!Bed ID

jrimn In rv

ER<ff

!¥fU

]

HUNTINGTON HOSPit^j

Ti mar

/”■ 1 —

'———

SouiEB-,

L3:1

L«:4

(.5:4

BRADLEY, DONALD

PT/OTHFR

****5g

history-

location : R L

Quality

*—nty^^ta/m.

pu» to urgency of

mantal status

J-Fam|ly PMO EMS NN not..

OwoBont /

„min / Dm /

Timing? acffttn /

ifltenntoant / dTS

Contnt:

~----.OM Chart

n&rr

fmetorn

Amoc.sk; SC4££“ji£«g»Yi^

PMH'PSH

NOn» { OM

Alcohol

OUmW. Is .lists: AM™

13:1

14 2-9

WW M« rg£J*, Sw,il* TZItaSLn*'T,rM **»««

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ENT

- sS.-^H^asrIT

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BP auptno

PULSE

tenderness

£ysa

Visual Q*Wa

• eom

<5L

SKWM

NCURO

MVCH

taeont PonUo/Vag. n/

Ta« pain flonlial uta

Myalgia

Weaknaj

Back

pain

Sciatic

Ne» «

&22* *“*<« ■ Breast mass

Nippla 0/

Dizziness

Vtrtlg

N«J Oiprtuion

Mania

looa ol Cqntcfouanaa

Pltowa

Sulcldi

H“' / Cow Intoe. T / 4 Thyfpl

Petechias

N»« ^^^_*J®£y*lminimfly

Rhinitis

Adenopathy

Anomi

HIV

Cancer

No®

Joan;

p,£

SSLm % m

R«*p

Wonowtaal

ssa

yCty

lacerationVPshurn^

Hematoma

p>f’Mrni

Pul»^B-lno9

thin

L3.J

LS.I

t4:5

aiumm

OP Cains

PULSE

Epialaala

Carles Dentures

/ pleurtSe Syncopa Edema

Palpitations

Hemoptysis

AnoruJa

Consttp™*

S,rtdur

Df«rrhta

BRSPfl Hsmla

Jaundice

«”■ ». £22•

Waaknan

itch

0/C

A^b

bulging

Acuity ft

r-b.te^r

blind

unreactlvB

Ant chamber

clear ^rVc ,*r cloudy fb3 abntslon ^!^!

«*udate

*yd* normal

|e8ic^

hyphema

hypopyon

(contact lens)

Conjunettvi.

Dlnt,

pale ^^rt>aKoph,ha,'nos

. ®II I' i ■paclloii: A, uja

I ~—gQrthematoim

icteric

D/C FB

norma

.™*eopte:c«’o»

ander

normal

mass

mass'

' n»

normal

erytn

CVC

Hearing

normal

eBuslon

hemoTM

Wsber

erytn

eplstaxis fb

Rinne

deaf

septum normal

deviated

»pe noZ? ;x

normal

andsmess

maloccfuaion

decav

„..fr8

cyanotic

laceration

oryth

Bbscass

teeth

Pigmented*

9 m

normal

swollen

• Oropharynx

nyparpleatlc

mucosa

laceration

swelling

Petechias

tongue

mass

normal

exudate

tonsils

"iSj* niaoBmlfen“n°,*M tender TTsize

crepitus

rMa-nognel'

enlsm^ "•chee

midline

deviated

stridor

— maM___scar

tender

Percussion • Lhwil normal

mtractions agonal

norma,

duu

hypermMmanT

* Auacuiutton

Palpation

normal mass

JEMtSHSg

- wheera

rhonrhi tender fremitus

mastectomy

lesion

p8lpa,lon ” no^

honv

beyirimetry

nipple

mass

tenderness

M-

„p^nSS'2JrBK

•SiS-sr-

p^2sTjsr°"

DONf> L u

Pulse Os

[y°

Playful

interactive

"**• disheveled P°Or hygionei "•*"""*/*»/»» S»«n*,i

tontanollo Betmaaa

normal

Held cut

Abnormal

Nystagmus

* Pupils R

PUndl:

Wt(kg)

/l^VMrv

?-y/Lu^v

Cfc—r^7

v t^;—^

eh-'cb—,

AW"'

Arj /s(Ur^ytci-Ct

/(-h'~i"'

fmar

APE

“EDICN. RECORDS

patient

oatQ ^ y^i/x

•

BRADLEY, DONALD

Imamu.

****59

'H*atCAi ■ l XAM|F*AI|QN(>J

Au«c^IuSSn,*H«flPa,^?J'

t'MI

PMI dtapjBced

"ave

thrill

Carotids

normal pX b°rult X?9

* ' * • &-num£*

E52"* « ,<"•?*«• «mloXd ^T) "W, ,8nta^“ Pulsatli. ..

bruit

R (nipuiaa dimir.t.K-Tf l?..1' L<nl Pulse diminished bruin

INiWwit Eu

T*#'

gssJ-s, •^f^p-SLsr ZZr "*

•sr noM^^T aflr‘,L9's^;:,

0,s,end*d

•«=£. ^■TirJ?^"=sr

mass scar

fluid : wave

• Sp|««n

normal

alz»~

mas*

incisional

sssr^r^ass srsu.

Peivie normal

duh,^,

t.ni^ CV^T »coiios*a kyphosis

nonpslpsbls^crsm^.hl^r1^"^y.

„tl, nonMll -y-r

------- .

Epididymis

normal

♦

normal absent hydroeoela

e.nd8r maas

P*nls

normal

^/C

hi^ar

ma“

,an<,orna^

Prostata

nnm.i

T Wo®? “* fnaa,0» circumcised

amsls ou

v£i~------- nodule tender

high ridln

V-SimrTormar

normal

n/r>

Jaa,on

aryth

lesion

abscsss

mass

Urethra

normal

maas

scar

cy*tocoele

Cervix

normal

Bladder normal

full

lesion

mass

tender

CMT

Uterus

normal

D/C

closed

gravid

open

enlarged

firm

Adnexa

normal

rolroverted antsvartod tender

maea

lender

enlarged

•wtohmib ~nsS

nonpaipahtn

normal

Groin

adenopathy

Axillae

-------normal ad.™—

normal

adenopathy

Other •

normal _ adenopat

normal

unsteady

wide-based

edama '

ataxic urtabto

Digits * nails normal ciu^CO,IB®*

uloem

mottling

cyanosis

clubbing cvanoala

Rui normal o

_______

-Pryth petschfaa ischemia swelling

t-U8 nomisia

*22,l“ ur8th'«=«xM*

Tsndtr Swauins

Mtsssgnmsnl

CmpiUitrort

Wsas/ESualnn

ROM

m i /sgs55555

Normal

’

LTona normal ft/t

T«rwf«r SmSdi

J^hattQWniaiT

Ctapkatlon

“w/EAwtoo

ROM normal/*

Laxity/OtaloeaaoS

SuttuKauon

Norwfi

normal /* /1

• Skin Inspection

lormal

jaundice

lace

Pslpsitow

tormi

ftU: r>ormaJ □

fvndor SHmSkn

•rttssttenmom

CraotUlon

/ Elusion

flOM nofm*M t

/ DiUocstion

SubHaaMon

w©mwl "/g

Ton» normal / t / a

rash

llE norms □

TWxJor SnnSIng

CrapttaSon

MMa/Efuaton

^^WOfSteSSrT

9Ubfrmcttai)

Norm*

-fo* norm# / tJ i

pala erythema cyanosis

lymphangitis

cool

cap nsfIB < ?

:Xli intact >» l| normal

III/IV/VI

■i acuity field cut APD blind

normal

1EOM

VII

normal

■fcorneal reflex

I NIHSS

facial asymmetry

VIII

normal

llaciel strength

Shearing

normal

vertigo

palate delicti

ataxia

XII

. *gag reflex

normaJ

normal itrspetlus

deviated

^•fleits normal tongue

S9n««flen normal

itouch

!oi„*bin?^

Coordl

A 2pt disc

* toe

NflucataoiffiU

•—m-s*0"*

s ,s5sas3iar!r“

bought

normal

^Jbn ROMBERG - / +

Unre

normal

impaired

place

dale

remote

anxious

dlsorteS^

agitated

cooperative

suJddal

homicidal hallucinations

«■ trSST"

□ Ucsrstldin repair

■=—

□ Lldocalne

r* documenauion difiere.

** intorma«or

^S2pIiS^ht»SS.m,Wnt

hostile I

delusions IV

Co.nmenfs /Procedure,s'j ”

°g!jka, oenefits andasSSi^-^rrr?"

□ i*H»inr applied

u neurovascular InmJ—

l-??** gsar1 and evaluated th<

retident's no*.

®nddr mrdcUa iawai piovidar'ft nm*

□ simple

Siqnaturi?

□ multl-iaysr

sutures

’i&mMU'eD0N^^D FIRST

»««*« snd lmm««at.ly

Attending Signature:

AOS

3 0 y iHttM

^QtCaiREnosSBr

MEDICAL RECORDS

-W.TIEWT ACCOUNT

oo/3x/:i.

□ATE

BRADLEY, DONALD

iijjjJwgwnjospnAL

—■ iCBC bmpTmp

-—,no bnp

----------Ltan«L-------------------------

* * **5£

5 of 21

Orders

EMERGENCY Dpp.e-------------

Lbolu*

mUhr x

hr» ;

lime !

! □ NwWnoNot»

i □ Critical Cm «... ~~

-—

aowlH»« ^30 mlo of

««efusfe»0f

"WWWrMM. proeMur««

g*»c«i earn

lgH»WAbd/Peh,£

;

(

nel order sheet

;

CXR 1

BAOlpLOGV

• iL^yir

BNP

D-dlmer

Q«qhs Qntsrn

<tfocus«ad wtlpredloli

□ AMA □ NOTE

V O UNCHANOPn

JFIXWi QlcU~a

□ ISOLATION □ or

-D Gath lab

Resident.

NF*

Attending

*w*®» undMumfc,

ff.lnilnjeilons mm ntmnmi'

■i

ynjHi -g.n^p.A.vM.pr"

1,24^3 1/a 3

;

BRADLEY, DONALD

* ***55

BSADLky,

DONALD

I REGISTRATION,

emer

DQR.

m/r

' . 08/3.1/13

— ire

6 of 21

Huntington Hospital

Park Avono#

mSftSSS" **>"«*»»

www- hi mthosp. orf)

NEW YORK ^e?mmu°^on'PAT,0N ,n

INFORMATION system

- .-u„iMtio„w and

niation

mmn^atl°n !nf°rmaWon'n NYSIIS ma k

school that I am'? '"SUrance p,an' the state and lo^n^ *0 th® followi''g:

deliver my medfcalfcaro1^ *° attent*» an<* authorized ^G^cal^provider5that>iS

care.

,Sr3ST*:=ci^ssrff~'cHomc«'“&hve",ved

may be

«■— * «srmv cowen'- h°—•

PRINT NAR/ii '

°ATE of BIRTH

SIGNATURE

--8^3(1

DOH-4439 6/12

date

BRADLEY, DONALD

7 of 21

BRADLEY, DONALD

Opt Out: No

HUNTINGTON HOSPITAL

SO Triage

From: 08/31/2013 17:40

Rm-Bed:

MRN:1mRe

To: 09/01/2013 10:27

Admit Dt 0&-31/2013 17:40

Gender: M MO:

Registration, Emergency Room

R8quasto3^5$i72013 17:41 (SID)

ED Triage Nag Documentation

Rage 1 or 2

08/31/2013 17:58

Initial Intake

Chief complaint <I-Z) = Sore Throat

BP (NIBP) = 106/59

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18.04

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

Zoning, Susan:

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

Manning, Susan:

08/31/201318:04

Manning, Susan

08/31/2013 18:04

, Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

PULSE #1 = 67

RESPIRATIONS = 16

TEMP #1 in F = 98;7F

02 SAT % = 97% Room air

Preferred Language = English

PAIN LEVEL = 9 NRS

Suicide risk = Not at risk

Suspect sepsis = No

Suspect stroke i No

HEIGHT/LENGTH in inches - 70in

WEIGHT in Kg ■ 70.9kg actual................

BMI - 22.4

HIV Testing -Offered and declined

ESI level = 3

Nursing Assessment

Allergies documented = Yes

Home medications documented = Yes

Manning, Susan:

08/31/2013 18 04

Manning, Susan

08/31/2013 18:04

Manning, Susan

: 08/31/2013 18:04 :

Past medrcalhistory = other—>

Notes: chronic pain to rtieg

SUrS,C*' Ks,°'y - * •«» wounds in back, pBd

mva 9/13/11

Advanced directives = none

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18 04

Special needs <* none

BRADLEY, DONALD

Rrn-Bed:

Acct:

MRN:

ED Triage

Page 1 of 2

Permanent

BRADLEY, DONALD

8 of 21

BRADLEY, DONALD

OpIOut: No

HUNTINGTON HOSPITAL

ED Triage

From 0801/2013 17:40

To: 09/01/2013 10:27

Hm-Bgd:

Admit DC 08*31/2013 17-40

Aoe: 30 yr

OOS.-MI

Emergency Room

MRN:'4SI

Requeeted: 08/D1«013 17:41 (SID)

ED Triage Nsg Documentation

Page 2 of 2

08/31/2013 17:58

Nursing Assessment

Fear for safety at home =. No

Travel outside U.S. past 3

months = No

Pertinent medical observations =

pt was choked until

unconscious last pm

Allergy Detail

Allergen •..

Active - Drug

WS] NKA

Onset Date!

Reported By:

Rel. lo Pallenl: .

Comments:

Entered:

. 09/14/2011 05:12. Co System. Id

Confirmed:

08/31/2013 18:00 Manning, Susan

Vended:

—09/14/2011 05:12 Stalfid. j50526

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

Reaction

Sensitivity

Type

Severity

■ I Allergy

Medication Detail

Status - Type

~5«IV0- Unknown

AKA:

Indication:

Type:

Info Source:

Comments:

Entered:

Confirmed:

Modified:

Oescrlptlon

Do»»

• | Frog/

I Rputa.

| Rata .. .

- Farm

Strength

TOraT

11/13/2012 08:00 Alivlo, Leah

0»31/2013 18:00 Manning, Susan

Oggi/2013 18:00 Manning. Susan

BRADLEY, DONALD

Pm-Bed:

Acct:

MRN:i

ED Triage

Page 2 of 2

Permanent

BRADLEY, DONALD

***459

Huntington Hospital

Patient:

Si m

LEY,DONALD

l^h

Acct:

Age: 30 Y

9 of 21

Page: i

Service Date: 08/31/2013

Sex: Male

I.'

Tests

Date ana Tine

Ordered By

Entered By

13 18:13 Grass!,John

Grassi,John

Tlaaueriiry Et oi/n72U3~'

■

BRADLEY, DONALD

*6**59

10 of 21

BRADLEY, DONALD

HUNTINGTON H08PfTAL

PROM: 08/31/13 17:40 TO: 08/01/13 1027

ROOM: *■-* AOM: 08/31/13 17:40

:nEQ,8Tn*^^^

Orders Summary - BRADLEY. DONALD

RE QUEST ED:08/O&13 18-40

OPT OUT: NO

1 Ai>LaaoT

Charted

C3/14 05i12

Allergy

NKA

name

Type

Haeccion

Drug Allergy

, Severity Comment

j DIAGNOSIS

SORB THROAT

BRXIf

ordff atAtm

ordi^M»».

Complete

NBCX (SOPf F188U8>

ordered by* crassi, john

XRX BR

££S9i

Priority

Duration

Start

ONCE

3TAT

I Occr

08/31 18*13 08/31 10*13

stop

™ibBVcT3F^Er8 *08/31/1318,13

ID - 09/01/13

Mode* Written

Room* 14 r/o fx B/p choke hold

10*27

Me unsigned orders found.

LAST PAGE

Pago 1

. per*s: :.

BRADLEY, DONALD

11 Of 21

BRADLEY, DONALD

HUNTINQTON HOSPITAL

Pre-Op Checklist

From: 08(31/2013)7:40

Age: 30 «•

Pre- op Checklist

08/31/2013 07:01

OplOui: N0

To: 09/01/2013 10:27

t?”111 Dt: 0831/2013 17:40

RoquiwS* OaSlaSoi a ib;4o

Page 1 of 1

09/01/2013 07:00

08,31/2013 17:58

PreOp Vitals

HEIGHT/LENGTH in Inches =

70in

WEIGHT in Kg = 70.9kg actual

Manning, Susan

08/31/2013 18:04

Manning, Susan:

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/201318:04

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/201318:04

Manning, Susan

08/31/2013 1804

Manning, Susan

08/31/2013 18:04

BMI =. 22.4

TEMP #1 in F _ 9g 7p

PULSE #1 = 67

RESPIRATIONS =. 16

BP (NIBP) . 106/59

02 SAT % . 97% Room air

BRAOLEY, DONALO

flm-Bed;

Acct:

MRN:

DOB:

Pre-Op Checklist

Page 1 of 1

Permanent

BRADLEY, DONALD

****59’

12 of 21

Huntington Hospital

Department or Radiology

270 Parle A ve

Huntington, NY 11743

Ph: (631) 351-2351

radiology imaging report

Patient Name:

MRN:

Ordering Physician:

Ordering Location:

Accession Number:

Order Date / Time:

Study Description:

Reason:

■

Report Stems: FINAL

BRADLEY. DONALD

Age:30Y

Account Number:

GRASS!, JOHN

Ref MD:

ConMD:

000233637

8/31/13 18:13

4420007 - CR ER NECK (SOFT TISSUE)

GRASSL JOHN

Order Number:

00146735101833133

ROOM: 14 R/O FX S/P CHOKE HOLD

Radiographs of the cervical spine

CLINICAL INFORMATION: Status post choke hold, pain

TECHNIQUE: Frontal and lateral vi

ews of the cervical spine were obtained. Odontoid vi

cw was not obtained.

FINDINGS: No previous oamimrtioiis are available for review.

vertebral body lractuie seen. The disc

^ESSION: WW

Stnigta*., ^

is noted. No gross vertebral body fracture is

Dictated fly:

Transcribed By:

CC Physicians:

MULTZ, MICHELLE

Radiologist; MULTZ, MICHELLE

Date Signed: 9/1/13 10:28

Hate Prinred:

9'I/20I3

Page 1 of I

Sex: M

Recipient: ORIGINAL

BRADLEY, DONALD

****59

13 of 21

BRADLEY, DONALD

Opl Out: No

HUNTINGTON HOSPITAL

HHS Admit Discharge Rpt

From; 08/31/2013 17:40

To: 09/01/2013 10:27

R/n-Bed:

Admit Dfc 0831 /2013 17:40

Ago; 30 yr

Gender: M MD: Registration. Emergency Room

DOB.-rUMB

Acc

MHNKBL_

Raquosted; 08/02/2013 18:40

Page i oi 2

NO DATA FOUND FOR MODULE: 1. AOX Discharge report

Allergy Detail

Allergen

Sensitivity

Reaction

Type.

Severity

Active • Drug

[NS] NKA

Onset Date:

Reported By:

Rel. to Patient:

Comments:

Entered:

09/14/2011 05:12 Cc Syslem, Id

Confirmed:

08/31/2013 18:00 Manning, Susan

Verified:

09/14/2011 05:12 Staftid, Js0528

Allergy

Medication Detail

Statue - Type

Description

Pose

Active ■ Unknown

Peroocet OraKoxycodone- acetaminophen Oral)

Fred/

Bats

Route

Form

l Strength;

Oral

AKA:

Indication:

Type:

info Source:

...............

Comments:

Entered:

i 1/13/2012 08:00 AIMo, Leah

Confirmed:

Modified:

08/31/2013 18:00 Manning. Susan- •

08/31/2013 18:00 Manning, Susan

Immunization Detail

Description

BRADLEY, DONALD

Rm-Bed:

Dose

Acct:

Route ••

Site

Type of

Vaccine

and!

Pose#.

Adverae Reaction

. Reaction

DOB: HgyUHWIi

HHS Admit Discharge Rpt

Severity

Intervention

Page 1 of 2

Permanent

Bradley,

donald

15 of 21

BRADLEY, DONALD

°Bl Out: M0

H JNTINQTON hospital

Pods Admission

From: 08/31/2013 17.40

To: 09/01/2013 10:27

Rm-Sod:

Admit Dt: OS'S 1 .'2013 17-40

*0e: 30 yr

enii„ID:

Agency Room

OOB:«iMb

MHN: 000710059

Roquosted: 08/02/2013 J8:4o

Pads Admission

08/31/2013 07:01

Page tod

09/01/2013 07:00

08/31/2013 1 7:58

Pads Physical Assessment

HT & WT INFO

- HEIGHT/LENGTH in Inches =

HT & WT INFO -

70in

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18.04

Manning, Susan

08/31/2013 18'04

Manning, Susan

08/3172013 18:04

Manning. Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18.04

Manning, Susan

08/31/2013 18:04

Manning, Susan:

08/31/201318:04

WEIGHT in Kg = 70.9kg actual

HT& WT INFO-BMU 22.4

VITAL SIGNS - TEMP #1 in F

= 98.7F

VITAL SIGNS - PULSE #1 = 67

VITAL SIGNS - RESPIRATIONS = 16

VITAL SIGNS - BP (NIBP) » 106/59

VITAL SIGNS - 02 SAT % . 97% Room gir

Pain Site Mgmt

PAIN - PAIN LEVEL =

9NRS

Manning, Susan

08/31/2013 18:04

BRADLEY, DONALD

Rm- Bed:

Acct;.|

MRN: ■

DOB:MH

Pads Admission •

Page 1 of 1

Permanent

BRADLEY, DONALD

ls of 21

BRADLEY, DONALD

pssxssrSZEJ?11*013'**

Age: 30 w

dos: mm

Opt Out: N0

09/0 *'2013 10:27

QPddar tTlTn Oa'»1*0ia I7t«

Acc*^HM£b

F,°B;8*,a,'0n’ Emergency Room

MHN:0(

Deauoated: 08/02*013 18:40

Peds N®0 Documentation

08/31/2013 07:01

TO 09/01/2013 07:00

08/31/2013 17:58

Pa88 1 Of 1

P®«Ss Respiratory

OXYGEN - 02 SAT % =

97% Room air

Pain Site M gmt

PAIN - PAIN LEVEL -

n«a™in9> Susan

08/31/2013 18:04

9 NRS

'assfciss.,

BRADLEY, DONALD

Rm Bed:

MRN:

Reds Nsg Documentation

Page 1 of 1

Permanent

BRADLEY, DONALD

****55

17 of 21

BRADLEY, DONALD

Huntington hospital

OpIOut: N0

Ns0 Documentation

From: 0MV2013 17:40

To: 09/01/2013 10:27

Pm-Bed:

Admit Dl:

Age: 30 y,

0*31/8013 17:40

Gender: M

MO: Registration. Emergency Room

MRN: flS|

Nag Documentation

08/31/2013 07:01

Requested: «^013 18:40

08/312013 17:58

page 1 of

09/012013 07:00

Respiratory (1916S)

OXYGEN - 02 SAT %

= 97% Room air

Manning, Susan

08/31/2013 18:04

Pain Site Mgmt

pAin - pain level - 9 NRS

Manning, Susan

08/31/2013 18:04

L&D vital Signs

TEMP #1 in F = 98 7p

PULSE #1 = 67 .

«k&?sr

ossars

RESPIRATIONS » 16

BP (NIBP) = i06/5g

02 SAT %

= 97% Room air

Vital Signs/Measurements

TEMP #t jn p , 98.7F

Manning, Susan

08/31/2013 18:04

Manning, Susan

-08^31/2013 18:04Manning, Susan

08/31/2013 18:04

PULSE #1 = 67

RESPIRATIONS =16

.-Safe ftB*

02 SAT % = 97% Room a|r

Manning. Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18^4

Vitals/Measurements

VITALS - TEMP #r |n F „ ga7(r

VITALS - PULSE #1 „ 67

airs

VITALS - RESPIRATIONS = 16

VITALS - 02 SAT % -

Manning, Susan

08/31/2013 18.04

Mining, Susao

08/31/2013 18:04

Manning, Susan

08/31/2013 1804

97% Room air

BRADLEY, DONALD

Rm-Bed:

MRN

Nsg Documentation

Page 1 of 1

Permanent

BRADLEY. DONALD

****59

18 of 21

! BRADLEY, DONALD

Huntington HosprrAi.

Opi Out: No

Cardiac Services

From: 08/31/2013 i7:4o

Ago: 30 yr

DOB:mam

Cardiac Services

08/31/2013 07:01

.!0: a3/0l/2O>3 10:27

.Admftot: oa-31.-20t3 17:40

AccrljlHHOR ReS'S,rall°n' EmerSency Room

Peoueeted: O8/O2/2013 18:40

08^1 «oi 3 17:S8

Page 1 of i

09/01/2013 07:00

Cardiac Services Procedure Record

HT & WT INFO HT & WT INFO

HEIGHT/LENGTH in Inches =

70in

Manning, Susan

08/31/2013 1804

Manning, Susan

08/31/2013 18:04

Manning, Susan

08/31/2013 18:04

WEIGHT in Kg = 70.9kg actual

HT a WT INFO - BMI = 22.4

8RADLEY, DONALD

Rm-Bed:

D0B;®fiig|Sj

Cardiac Services

Page 1 of 1

Permanent

BRADLEY, DONALD

****59

19 of 21

BRADLEY, DONALD

Opl Out: No

HUNTINGTON HOSPITAL

Vital Signs ISO Report

From: 08/31/2013 17:40

To: 09/01/2013 10:27

Rot-Bed:

Admit OK 08/31/2013 17:40

Re°is,ra,ion'Eme,°ency R°°m

Requested: 09^2/5013 18:40

Vital Signs ISO Report

08/31/2013

08:00

15:59

00:00

07:59

16:00

23:59

. ...

105

Page 1 of 2

103

101

S’

0091/2013

200

180

160

140

i2o

too

40 '•

00:00

07:59

08:00

15:59

0891/2013

08:00

15:59

00:00

07:59

200

180

160

S' 140

a 120

& 100

16:00

23:59

...

16:00

23:59

■

Vital Signs

06/31/2013

00:00 07:59

HEIGHT/LENGTH

WEIGHT in Kg

8Mi

08:00 15:59

18:00 23:59

70in

17:58 SMAN

70.9kg Actual

17:5$ SMAN

22.4

17:58SMAN

BRADLEY, DONALD

Rm-Bed:

MRN:

DOB:

Vital Signs l&O Report

Page 1 of 2

PerrTianeot

BRADLEY, DONALD

*ar**5g

BRADLEY, DONALD

20 of 21

Opt Out: No

HUNTINGTON HOSPITAL

Vital SiQftfl IAO Report

From: 00/31/201317:40

To: 08/01/201310:27

R tv Bed:

Admit Ot: Oe/31/8013 17:40

Age: 30 yr

>: Registration, Emergency Room

Acct

MHN: ieMIUi

Requeste5Toete«013 18:40

Page 2 of 2

vital Slgna l&O Report (continued)

Vital Signs

08/31/2013

00:00 07:59

TEMP #1 in F

08:00 15:59

16:00 23.S9

98.7F

17:58 SMAN

PULSE #1

17:58 SMAN

RESPIRATIONS

17:58 SMAN

97% Rmair

17:58 SMAN

02 SAT %

BP (NIBP)

106/59.

17:58 SMAN

|Staff Legem]

SMAN

Manning, Susan

BRADLEY, DONALD

Rm-Bed: ■

Acc*:-----

DOB;i

Vital Signs l&O Report

Page 2 of 2

Permanent

BRADLEY, DONALD

21 of 21

BRADLEY, DONALD

HUNTINGTON HOSPfTAL

Respiratory Therapy

From: 08/31/2013 17:40

Rm-Bed:

Ago: 30yr

Op! Out: N0

To: 09,01/2013 10:27

Admit Dt OSS 1/2013 17:40

Re8'«™«on, Emergency Room

Requested: 09/02/2013 18:40

Respiratory Therapy

Page i of 1

08/31/2013 07:01 TO 09/01/2013 07:00

Legend Charting

08/312013 17:58

RT Equipment (80528)

02 SAT % = 97% Room air

Manning, Susan

08/31/2013 18:04

BRADLEY, DONALD

Rm-Bed:

Acct:jSi£lifffi

Respiratory Therapy

Page 1 of 1

Permanent

'•

✓

, vA

•

AFFIDAVIT IN SUPPORT

Marly Senat #8251301278

13=13 Hazen St.'

E. Elmhurst j N.Y. 11370

Re: Affidavit In Support, Docket 3iNo. 2013QN052004/lnd.No.2916=2013

To Whom It may Concern:

I, Marly Senat, defendant in the above=referenced

criminal matter, am writing this Affidavit In Support pertaining

to the above-referenced criminal matter. .On September 17, 2013

I was arrested for the following offenses: PL 160.15-4 (Robbery

in the First Degree), PL 160.10-1 (Robbery in the Second Degree),

PL 1-60.10-2A (Robbery in the Second Degree), PL 121.12 (Strang

ulation in the Second Degree), PL 265.03-1B (Criminal Possession

of a weapon in the Second Degree), PL 265.03=3 (Criminal Possess

ion of a Weapon in the Second Degree), PL 165.45-5 ( Criminal

Possession of Stolen Property in the Fourth Degree).

I, Marly Senate takes and accepts full responsibility

for the above-mentioned crimes & offenses for which I have been

charged. I acknox^ledge and admit that the weapon was in my

sole possession as well' as the stolen property. I make this

Affidavit under my own free-will, free of any duress, pressure,

or coercion. I am also fully aware of what I am doing and

of the legal ramifications.of such.

Ne. 2-13375

Qualified in Queers County

Commteskm Expires July 1 2014

CC: File/M.S. .

District Attorney, Queens County

Marly Senat #8251301278

SWORN TO BEFORE ME .THIS

DAY 0W

2014

HEADLINE: Second Department Orders New Trial, Rebuking Queens Justice's Behavior

BODY:

In a rare move for an appellate court in New York, a panel of jurists ordered a new trial for a man

from Queens this week to be presided over by a different judge, saying that Queens Supreme Court

Justice Ronald Hollie inappropriately interfered with proceedings.

The Appellate Division, Second Department said in the decision that Hollie, whose decisions have

been reversed by the appellate court on several other occasions, unfairly inserted himself into the trial

two years ago.

"There must be a new trial, before a different Justice, because the Supreme Court conducted

excessive and prejudicial questioning of trial witnesses," the decision said. "Although defense counsel

did not object to the questioning of witnesses by the court, we reach this contention in the exercise of our

interest of j ustice j urisdiction."

Hollie was not immediately available to comment on the decision Thursday afternoon.

The appeal was brought by Darnell Ramsey, who was convicted on robbery charges by a jury before

Hollie in 2017. Ramsey was represented on appeal by attorneys with Robert D. DiDio & Associates in

Queens.

"Obviously I'm thrilled with the decision of the Appellate Division," DiDio said. "It was extensive

interference by the judge during the trial. Asking questions, ruling on his own objections."

Hollie, according to the decision, decided to take an active role in the trial at several different points.

He extensively questioned witnesses beyond the line of inquiry levied by attorneys in the case,

interrupted cross-examination by the defense and "generally created the impression that [he] was an

advocate on behalf of the People," according to the decision.

DiDio claimed that Hollie asked 226 questions of witnesses in 340 transcript pages from the trial. He

was accused of bolstering the credibility of witnesses in favor of the prosecution through that

questioning, the decision said.

The panel said the jury may have decided against convicting Ramsey, had Hollie not acted as he did

during the trial, even though it did not go against the weight of the evidence presented.

"In fulfilling our responsibility to conduct an independent review of the weight of the evidence, we

accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe

demeanor," the decision said. "Upon reviewing the record here, we are satisfied that the verdict of guilt

was not against the weight of the evidence."

Hollie was also accused of siding with prosecutors more often when deciding whether to sustain or

overrule objections. According to papers filed by DiDio with the Second Department in the case, Hollie

nylawj

restrictions and terms and conditions of the Matthew Bender Master Agreement.

either directly or implicitly sustained objections from prosecutors nearly 70% of the time. But for the

defense, Hollie was said to have only sustained objections about 42% of the time.

"It was just extreme," DiDio said. "Obviously the appellate decision agreed."

A request for comment sent to the Queens District Attorney's Office, which prosecuted Ramsey, was

not immediately returned.

It's hardly the first time a decision by Hollie has been reversed by the Second Department. As the

New York Law Journal reported last year, four of Hollie's decisions have been reversed by the appellate

court for similar behavior in the last two years alone.

In each of those cases, the Second Department highlighted Hollie's practice of interjecting himself

into trial proceedings and ordered a new trial with a different judge. That doesn't usually happen when a

state appellate court comes to such a conclusion; usually the same judge oversees the new trial.

Associate Justices Leonard Austin, John Leventhal, Sheri Roman and Robert Miller were on the

appellate panel that reviewed Hollie's decision.

/--'RLAmviORE:

A Series of Rare Appellate Reversal Orders, All From One Queens Justice's Courtroom

NY Appellate Court Reverses Denial of Attorney Fees to Conservative Commentator

Suspended NY Judge's Lawsuit Against OCA Officials Allowed to Continue by Federal Judge

LOAD-DATE: July 13, 2019

pvioty

yyjrh

) q 90/ 7 w

nylawj

restrictions and terms and conditions of the Matthew Bender Master Agreement.

U.S. CONSTITUTION

1712

1713

e choice of electors for

thi

ag.

an, of

United States, or in any way abridged excent fo^arH°f ^

dtizens of the

the basis of representation therein shall be reduced in th &

rebeIlion’ or other crim*

crime,

such male citizens shall bear to the whole

such State.

thi

„r ^ jsszszgz szs: £

arr

President and Vice PresidenMmhold anf office '& ^epreacntat,ve in Congress, or elector of

under any state, who,

^ '“f"

U“M S““. »

officer of th. United States, or a. a

^,v if,» ™“b» of'Congress, or a. an

judicial officer of any State, to suDDort the rwif Yy tate 1®glslature. or as an executive or

gaged in insurrection or rebellion against the same or^eri * 6 ^nited States> shaI1 have en-

the

including debts incurred for wment

°f Sb United States’ authorized by law,

insurrection or rebellion shall not be « P k

bounties for services in suppressing

State shall assume or pa^ My debt 0r obbS'011

,neither the U™ted States nor an?

against th. United StaL^O," fcClT""'" “5 °f‘““section o, rebellion

debts, obligations and claims shall be held illegal and

day

ary.

anc

°f any slave; but 811 such

provisions of this article °nSreSS ShaU have power to enforce, by appropriate legislation, the

sha

Amendment XV [1870]

tier

vote shall not be denied or

on account of race, color, or previous condition

sha

den

neit

the:

Section 2. Tfxe Congress shall have power to enforce this article b

tion.

y appropriate legisla-

per?

Amendment XVI [1913] w

son;

choi

fror.

source

any census

elected by tL^eo^Lfhltof

Amendment XVII [1913]ja

^ T*?™* °f tW°

devi

&0m «“* State’

in each State shall have the qualifications

of the State legislatures.

T 811 haVe °ne vote- The Sectors

i e or electors of the most numerous branch

five aShThy"of^““lateS tasue'S'rfef'i0’' °t

ame

in se

^ Senate' the execu'

the legislature of any State may emoower ,1°

,°" *°,M ,uch v“anc“a Provided, That

““ I““f “ ““

b* *1^ «the leS.‘ure”S; S”7

elec,io”or term °!any

Amendment XVIII [1919] ts

transportation ofintoxirating^quora withinfh^011 °*t^S artid6 the manufacture- saIe> or

g nquors within, the importation thereof into, or the exportation

ratii

Stai.

. ?

the l

then

men

with

1715

1714

U.S. CONSTITUTION

exist

majo

Com

Sens

Pres

shall

If th

Con;

dete

pow

Acti

Amendment XXII [1951]

Section 1. No person shall be elected to the office of the President more than twice,

and no person who has held the office of President, or acted as President, for more than two

years of a term to which some other person was elected President shall be elected to the office

of President more than once. But this Article shall not apply to any person holding the office

of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term with

in which this Article becomes operative from holding the office of President or acting as Pres

ident during the remainder of such term.

Section 2. This article shall be inoperative unless it shall have been ratified as an

amendment to the Constitution by the legislatures of three-fourths of the several States with

in seven years from the date of its submission to the States by the Congress.

Amendment XXIII [ 1961]

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Section 1. The District constituting the seat of Government of the United States shall

appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Sen' ators and Representatives in Congress to which the District would be entitled if it were a

State, but in no event more than the least populous state; they shall be in addition to those

appointed by the states, but they shall be considered, for the purposes of the election of Presi

dent and Vice President, to be electors appointed by a state; and they shall meet in the Dis

trict and perform, such duties as provided by the twelfth article of amendment.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

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Amendment XXTV [1964]

Section 1. The right of citizens of the United States to vote in

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