Moore v. Bradt

Filing 14

MEMORANDUM AND ORDER: For the foregoing reasons, the petition for habeas corpus filed by David Moore is dismissed and the writ is denied. Additionally, as Moore makes no substantial showing of a denial of a constitutional right, a certificate of app ealability will not issue. 28 U.S.C. § 2253. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-5 (1962). The Clerk of Court is directed to enter judgment and to close this case. Ordered by Judge Eric N. Vitaliano on 4/4/2014. (fwd for judgment) (Fernandez, Erica)

FILED
IN CLERK'S OFFICE

U.S. DISTRICT COURT E.O.N.Y.

* APR f 6 2014 *
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------:x
DAVID MOORE,

BROOKLYN OFFICE

Plaintiff,
MEMORANDUM & ORDER

-against-

09-CV-2167 (ENV)
MARC BRADT,
Respondent.

--------------------------------------------------------------:X
VITALIANO, D.J.,
Petitioner David Moore, appearingpro se, brings this petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254, against respondent Marc Bradt, thenSuperintendent of the Clinton Correctional Facility. Moore contends that his right
to a fair trial was violated by the admission of evidence of a prior criminal act and
the prosecutor's comments on the prior bad act at trial. Respondent argues that
Moore's claims are procedurally barred and are, in any case, without merit. For
the reasons set forth below, the writ is denied and Moore's petition is dismissed.
Background
On July 9, 2004, at around 8:00 p.m., David Moore rang the doorbell of Mary
Laskowski's home at 94-21801h Street, Queens, New York. 1 (Transcript of
Conditional E:xamination of Mary Laskowski, December 3, 2004, ("Dec. 3, 2004
Hearing") at 6-7.) Laskowski was 83 years old at the time. (Id. at 4). Although she

Because Moore was convicted, the Court recites the following facts in the light most
favorable to the verdict. See Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012).

1

testified that her eyesight was too poor to identify the defendant from the stand,
Laskoswki was able to describe the man who came to her door as a black male,
between 30 and 35 years old, with braided hair and freckles, wearing a black suit
jacket, and carrying a beige portfolio or folder. (Id. at 8-10). Moore asked
Laskowski if he could come inside to talk to her about Social Security, and she
refused him. (Id. at 10). Instead, Laskowski asked Moore to show her the
paperwork he was holding in the portfolio through her storm door window. Moore
declined and left the premises. (Id. at 11). A neighbor living across the street,
Joseph Scala, watched this entire interaction. Scala then saw Moore walk back
towards the Laskowski household moments later, without the envelope, walk into
the backyard, go around the house, and then proceed to crawl on his hands and
knees between the backyard and the front of the house. (Tr. at 274-76.) As he
watched, Scala called his sister, who lived next door, and instructed her to call the
police. (Tr. at 275.)
Officers Kelly Tafe and Eric Hores arrived at the scene a few minutes later.
(Tr. at 326-27.) Officers Tafe and Hores entered Laskowski's backyard and
observed Moore crouched in some bushes. (Tr. at 329.) The officers ordered Moore
to stop and show his hands; he did not comply and fled. (Tr. at 329.) After a chase,
Moore was apprehended by Officer Hores in another backyard several lots down
from Laskowski's. (Tr. at 333.) During the chase, Officer Tafe observed Moore
discard his suit jacket; she subsequently recovered it, and discovered inside a pair of
leather gloves, a pair oflatex gloves, a school identification card, and a piece of wire
with metal bars attached to each end, which both officers recognized as a

2

2

strangulation device. (Tr. at 334-35.) After Moore was apprehended, Scala
observed him in police custody and identified him as the person he saw crawling
around Laskowski's backyard. (Tr. at 17, 278.)
The next day, Officers Tafe and Hores returned to the scene with another
officer to search for evidence. (Tr. at 20.) They discovered a Ford Taurus parked
on Laskowski's street, the key for which had been recovered at the scene the
previous day, following Moore's apprehension. (Tr. at 20-21). A subsequent search
of the vehicle yielded a black bag with a chef's knife, pliers, rope, latex gloves, and a
folder containing a magazine entitled 50-Plus Senior. (Tr. at 22-23). 3
Moore was charged with two counts of attempted burglary in the second
degree (New York Penal Law§§ 110/140.25 [2)), criminal possession of a weapon in
the fourth degree (New York Penal Law§ 265.01 [2)), resisting arrest (New York
Penal Law§ 205.30), and possession of burglar's tools (New York Penal Law§
140.35) (Queens County Indictment Number 2376/2004). He proceeded to a jury
trial before Judge Michael B. Aloise.
Prior to trial, the prosecution sought leave to present evidence in its case-inchief of a prior crime, pursuant to the legendary People v. Molineu.x, 168 N.Y. 264
(1901). 4 The court held a pre-trial hearing on January 5, 2005, at which the

2

Officer Hores testified that he actually recovered these items from Moore's pants pockets.

3

The admissibility of the evidence recovered during the search of the car was contested but
permitted by the trial court, which held that Moore failed to establish a legitimate expectation
of privacy or possessory interest in the vehicle or the key. (Tr. at 63-64).

4

People v. Molineux, 168 N.Y. 264 (1901) sets forth the rule that evidence of prior crimes or

3

prosecutor argued that evidence ofa 1988 burglary, to which Moore pleaded guilty
("the 1988 burglary"), should be admitted as evidence of petitioner's intent, as well
as evidence identifying him as the perpetrator in the instant case. 5 The prosecutor
sought to establish that, in 1988, Moore, posing as a United Parcel Service employee,
in a brown uniform and holding a package, rang the doorbell of an elderly couple,
forced his way into their home at gunpoint, beat them, bound them with tape, and
robbed them. (Molineaux hearing at 8-11).
The People argued that the 1988 burglary was highly probative of Moore's
intent when he sought entry to Laskowski's home. The evidence was needed, the
prosecutor argued, because Moore's intent was otherwise ambiguous based on the
facts, and Moore had placed his intent at issue by eliciting testimony from
Laskowski that he had never attempted to force his way into her home when he
initially came to the door. (Id. at 15-16.) The prosecutor further argued that
evidence of the 1988 burglary was admissible to prove Moore's identity as the
perpetrator, which Moore had also placed at issue. Because the facts of the two cases
established a unique modus operandi, the People contended, evidence of the prior
crime was probative of identity too. In particular, the prosecution pointed out that
in both the 1988 burglary and the instant burglary, Moore chose elderly victims,

bad acts is admissible to prove a specific crime if it tends to establish motive, intent, absence
of mistake or accident, a common scheme or plan between the commission of two or more
crimes, or the identity of the person charged with the commission of the crime.
5

Apparently Moore had been arrested for a series of similar burglaries of elderly people, but
the prosecution sought to introduce evidence of only the most recent and relevant one. (See
Transcript of January 5, 2005 proceedings ("Molineaux hearing") at 9.)

4

used ruses to attempt to gain entry into the victims' residences, used props to
facilitate those ruses, and, in both instances, was armed with a weapon. (Id. at 1920). Then, given that Moore was incarcerated between 1988 and 2000, the
prosecution further argued that the prior burglary was not too temporally remote to
be probative, as Moore had no opportunity to commit "such similar crimes" while
incarcerated. (Id. at 22-23.) Petitioner argued in opposition that the evidence of the
1988 burglary was impermissibly prejudicial. He also argued that the 1988
burglary was too remote in time to be probative of intent, and too dissimilar to the
instant crime to establish a unique modus operandi, and would actually be used to
establish Moore's propensity to commit a certain type of crime. In an oral decision
delivered immediately prior to the commencement of petitioner's trial, on January
10, 2005, the trial court granted the Molineux application. (Tr. at 2-4.)
The People put the 1988 burglary to work right from the start. In her
opening statement to the jury, the prosecutor described the 1988 burglary in detail.
Defense counsel objected, and the trial court reminded the jury that opening
statements are not evidence, and that the court would instruct the jury as to the
purposes for which it could consider any evidence of a past crime. (Tr. at 262.)
During the trial, retired Detective Edward Simonetti, the officer who responded to
the 1988 burglary, testified as to what he observed when he arrived at that crime
scene. Retired Detective Robert Bolson, who apprehended Moore in connection
with the 1988 burglary a week later, testified that he initially stopped Moore
because he fit the description of the perpetrator of that crime. (Tr. 398.) At the
time of arrest, Detective Bolson testified, Moore was dressed in a brown uniform,

5

carrying an empty, unmarked box wrapped in brown paper, and a blank legal pad.
A search revealed that Moore was carrying a starter's pistol that appeared to be a
real gun, a pair of handcuffs and handcuff keys, and a roll of brown cellophane tape
of the same type that had been used to bind the victims, and that Moore was
6

wearing a wig. (Tr. 399-403.) During summation, the prosecutor walked the jury
through the similarities between the two burglaries, including the elderly victims
and the use of a disguise. (Tr. 490-91.) She argued that the jury could use those
similarities to infer what Moore intended to do had he been granted entry into
Laskowski's home. (Tr. 492.) Interwoven in the theme was the prosecutor's
response to defense counsel's challenge, on summation, to identity and intent,
arguing that Moore had been in Laskowski's yard for an innocent purpose, and was
not the same man that had rung her doorbell moments earlier. (Tr. 477.) As part of
his charge to the jury, the trial judge instructed that evidence of the 1988 burglary
was permitted solely for the purpose of proving the defendant's intent, and could
not be considered as proof of propensity or disposition to commit any crime. (Tr. at
513.)
6

During trial, it became clear that the prosecution would only be able to establish that Moore
had disguised himself as a UPS worker to gain entry to the victim's home in the 1988
burglary by relying on hearsay or circumstantial evidence-the victims were deceased, there
were no witnesses, and those details had not been part of Moore's plea allocution. (Tr. 37476.) Defense counsel moved for a mistrial, arguing that he and the court had been misled
into believing there was admissible evidence of this fact. The prosecutor argued that she
would prove the UPS ruse through circumstantial evidence. The trial court adhered to its
original decision, emphasizing that the jury could use the evidence of the 1988 burglary to
infer Moore's intent in the current case; the court was silent as to whether it the testimony
would still be considered proper evidence of Moore's identity. (Tr. at 377.) As a practical
matter, the two are inseparable. Given Scala's testimony that Moore was the man who rang
the doorbell, any modus operandi evidence going to his intent when he rang the bell would
also necessarily bear on his identity as the perpetrator.

6

The jury convicted Moore of attempted burglary in the second degree,
criminal possession of a weapon in the fourth degree, resisting arrest, and
possession of burglar's tools. On September 29, 2005, Moore was sentenced to
concurrent terms of 21 years to life on the attempted burglary conviction and one
year on each other count of conviction.
Moore appealed his conviction to the Appellate Division, Second Department,
on the ground that the trial court erred in admitting evidence of the 1988 burglary,
or, alternatively, at least "in permitting the prosecutor to conduct a virtual minitrial on the 1988 burglary," including "inflammatory comparisons on opening and
closing between the disturbing facts of the prior incident and the actual charges at
trial and repeated reference to facts the prosecutor could not prove with direct, nonhearsay evidence." (Br. for Defendant-Appellant at 3.) The Appellate Division
affirmed the conviction. People v. Moore, 50 A.D.3d 926, 927, 854 N.Y.S.2d 782
(2008). Specifically, the court held that the evidence was properly admitted by the
trial court to show that Moore employed a similar modus operandi in both crimes, as
well as to prove intent, particularly in light of "the defendant's contention, raised in
defense counsel's opening statement and through defense counsel's crossexamination of the People's witnesses, that his presence at the scene of the alleged
attempted burglary was entirely innocent." Id. The Second Department went on to
hold that Moore failed to preserve for appellate review his claim that the quantity of
the Molineux evidence presented to the jury was unduly prejudicial, as well as his
challenges to comments the prosecutor made in her opening and closing statements
regarding the 1988 burglary, and that, in any event, any error was harmless. Id.

7

Moore sought leave to appeal to the New York Court of Appeals, which was
denied on June 19, 2008. People v. Moore, 10 NY.3d 937 (2008). Moore filed his
petition for federal habeas corpus on May 13, 2009.
Standard of Review
Under the Antiterroism and Effective Death Penalty Act, Pub. L. No. 104-132,
110 Stat. 1214 (1996) ("AEDPA"), a writ of habeas corpus shall not issue with
respect to any claim that was adjudicated on the merits in state court unless the
state court's decision: (1) "was contrary to,'' or involved an unreasonable
application of, "clearly established federal law" as determined by the United States
Supreme Court, or, (2) "was based on an unreasonable determination of the facts"
in light of the evidence presented. 28 U .S.C. § 2254(d); see also Gutierrez v.

McGinnis, 389 F.3d 300, 304 (2d Cir. 2004) (describing this standard as "AEDPA
deference"). AEDPA's deferential review applies whenever a state court disposes of
a state prisoner's federal claim on the merits, regardless of whether it gives reasons
for its determination or refers to federal law in its decision. Harrington v. Richter,
131 S. Ct. 770, 785 (2011); see also Se/Ian v. Kuhlman, 261 F.3d 303, 312 (2d Cir.
2001). Where AEDPA deference applies, "a state court's findings of fact are
'presumed to be correct' unless rebutted 'by clear and convincing evidence."' Drake

v. Portuondo, 553 F.3d 230, 239 (2d Cir. 2009) (quoting 28 U.S.C. § 2254(e)(l)).
Furthermore, federal habeas review is not available where a claim has
already been decided by a state court, and the state court's decision "'rests upon a
state-law ground that is independent of the federal question and adequate to
support the judgment."' Downs v. Lape, 657 F.3d 97, 101 (2d Cir. 2011), cert.
8

denied, 132 S. Ct. 2439 (2012) (quoting Cone v. Bell, 556 U.S. 449, 465 (2009)). This
includes situations in which the state court "declined to address a prisoner's federal
claims because the prisoner had failed to meet a state procedural requirement."

Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Federal courts may not review
such a procedurally defaulted claim unless the petitioner can show both "cause for
the default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice," i.e., that the petitioner is actually innocent. Id. at 724; see

also Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
Finally, because Moore is proceeding prose, "his petition will be construed
liberally and interpreted to raise the strongest arguments it suggests." Paez v. U.S.,
Nos. ll-cv-2688, 08-cr-0823-03, 2012 WL 1574826, at *I (S.D.N.Y. May 3, 2012)
(citing Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
Discussion
Moore seeks collateral relief on the same two grounds raised in his direct
appeal: first, that the state court erred in permitting the prosecution to present
evidence of the 1988 burglary; and second, that the court erred in permitting the
prosecution to conduct "a virtual mini-trial" on the 1988 burglary, by making
inflammatory comparisons between the two crimes during opening and closing, and
repeatedly referring to facts that the prosecution could not prove with direct, nonhearsay evidence. (Pet'n at 3.) Moore asserts that these errors violated his
Fourteenth Amendment due process rights, and his Sixth Amendment right to a fair
9

trial.
Moore's first claim-that it was error to admit evidence of the 1988
burglary-was decided on the merits by Queens Supreme Court and affirmed by
the Appellate Division. See Moore, 50 A.D.3d at 927. Accordingly, this Court's
inquiry is limited to whether the state court's decision was contrary to, or involved
an unreasonable application of, "clearly established federal law," or, "was based on
an unreasonable determination of the facts" in light of the evidence presented. 28

u.s.c. § 2254(d).
"A decision to admit evidence of a criminal defendant's uncharged crimes or
bad acts under Molineux constitutes an evidentiary ruling based on state law."

Sierra v. Burge, No. 06-cv-14432, 2007 WL 4218926, *5 (S.D.N.Y. Nov. 30, 2007). It
is well-settled that a petitioner seeking federal habeas relief based on a state court
evidentiary ruling must demonstrate that the alleged error violated a constitutional
right, and "was so extremely unfair that its admission violates fundamental
conceptions of justice." Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998)

(abrogated on other grounds) (quoting Dowling v. United States, 493 U.S. 342, 352
(1990)). A petitioner bringing such a claim "bears a heavy burden because
evidentiary errors generally do not rise to constitutional magnitude." Sierra, 2007
WL 4218926, at *5 (quoting Copes v. Shriver, No. 97-2284, 1997 WL 659096, at *3
(S.D.N.Y. Oct. 22, 1997)). "For an 'erroneous admission of ... unfairly prejudicial
evidence to amount to a denial of due process, the item must have been sufficiently
material to provide the basis for conviction or to remove a reasonable doubt that
10

would have existed on the record without it."' Id. (quoting Dunnigan, 137 F.3d at
125).
Moore does not, and cannot, make any such showing. In fact, the trial court's

Molineaux ruling was not erroneous. Under New York law, evidence of a prior bad
act is admissible to "prove the specific crime charged" when it tends to establish,
among other things, intent or identity. See Molineux, 168 N.Y. at 293. As the
Second Department determined, evidence of the 1988 burglary was relevant to
Moore's intent, which Moore placed squarely at issue in his opening statement and
cross-examination of the People's witnesses, by contending that his presence at the
scene of the alleged attempted burglary was innocent. Moore, 50 A.D.3d 926, 927.
The trial court also correctly ruled that the two crimes possessed sufficiently unique
characteristics in common that evidence of the 1988 burglary was probative as to
Moore's identity. The trial court appropriately exercised its discretion in
determining that the probative value of this evidence outweighed its prejudicial
potential. See People v. Alvino, 71 N.Y.2d 233, 242, 519 N.E.2d 808, 813 (1987). Nor
did the fact that the prior burglary occurred in 1988 render the prior crime
excessively remote, given that Moore had spent 12 of the intervening 16 years in
prison. See People v. Wilson, 278 A.D.2d 65, 717 N.Y.S.2d 178 (1st Dep't 2000).
Given this Court's conclusion that the trial court did not err in admitting the
evidence in question, the decision certainly was not an "unreasonable application of
clearly established federal law." 28 U.S.C. § 2254(d).
Moreover, even ifit the trial court did err in admitting the evidence, the error
11

did not escalate to the level of constitutional violation, nor did it render Moore's
trial fundamentally unfair. Any error was clearly harmless because there was
other, extensive evidence of Moore's guilt. The consistent testimony of Laskowski,
Scala, and the arresting officers regarding Moore's refused entry to a stranger's
home and the description of him soon after crouching covertly in the stranger's
backyard, along with the possessions recovered from Moore at the scene, presented
more than sufficient proof of Moore's guilt of the offenses of conviction, even
without evidence of the 1988 burglary. Given the abundance of inculpatory
evidence presented, any potential harm caused by the introduction of the 1988
burglary was not "sufficiently material to provide the basis for conviction or to
remove a reasonable doubt that would have existed on the record without it." See

Dunnigan, 137 F.3d at 125 (denying habeas relief as evidentiary errors did not
render the trial fundamentally unfair).
Additionally, any prejudice to Moore from the admission of the evidence was
further mitigated by the trial court's limiting instruction to the jury, that the
evidence of the prior crime was only to be considered for the purpose of
demonstrating Moore's intent, and not as evidence of his propensity to commit the
instant burglary. (Tr. at 513.) See Richardson v. Marsh, 481 U.S. 200, 211 (1987)
("juries are presumed to follow their instructions.")
Moore's second claim-that the prosecutor in his case made excessive
references to the 1988 burglary in her opening and summation, and presented
excessive evidence of the 1988 burglary at trial-was rejected by the Second
12

Department as unpreserved for appellate review. This decision rests on an
independent and adequate state procedural ground. See N.Y. C.P.L.R. ("CPLR") §
470.05 (An issue oflaw is preserved for appellate review only ifthe defendant
objected to or otherwise protested the alleged error at trial); Downs, 657 F.3d at 104
(" ... we have held repeatedly that the contemporaneous objection rule is a firmly
established and regularly followed New York procedural rule."). As such, this
Court is barred from reviewing this claim, unless Moore can establish both cause
for the default and prejudice. 7
Moore does not allege any cause for his failure to raise this claim before the
trial court, and none is apparent from the record. Nor does Moore assert at any
point in his petition that his counsel was ineffective. Moreover, Moore fails to
demonstrate that prejudice would arise from failure to review the defaulted claim;
in other words, that but for the alleged error-that is, the way the prosecutor
proved the prior bad act, as opposed to the fact that proof of the bad act was
admitted at all-there is a reasonable probability that the outcome of the trial
would have been different. See Strickler v. Greene, 527 U.S. 263, 289 (1999).
Indeed, given the buttressed strength of the People's case against Moore for the
2004 burglary, as discussed above, there is ample basis on which to conclude that
had less evidence of the 1988 burglary, or fewer details of that crime, been

7

Moore does not assert that he is actually innocent, nor does he suggest anything else that
would demonstrate that a "fundamental miscarriage of justice" arises from failure to address
this claim. Murray, 477 U.S. at 496.

13

presented, the outcome of Moore's trial would have been the same.
That is why, even if this claim had not been defaulted, it would be meritless.
Plus, a prosecutor's comments at trial do not rise to the level of a constitutional
violation unless they have "so infected the trial with unfairness as to make the
resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168,
181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). "[l]t is not
enough that the prosecutors' remarks were undesirable or even universally
condemned." Id. (quotation marks omitted). Here, Moore points to no particular
pieces of testimony or comments by the prosecution that exceeded the probative
value of the evidence, and, indeed, the record indicates that the evidence presented
as to the 1988 burglary did not exceed that which was probative of Moore's intent
and/or identity as the offender, and that the prosecutor's comments were
appropriately tailored to that end. The prosecutor pointed out the factual
commonalities between the 1988 burglary and the instant crime, telling the jury that
it could use these facts to assist in deducing Moore's intent when he asked to enter
Laskowski's home. The prosecutor expressly told the jury that evidence of the 1988
burglary was not to be used to convict Moore merely because he was a bad person
or had committed a crime in the past. (Tr. 492.)
Conclusion
For the foregoing reasons, the petition for habeas corpus filed by David
Moore is dismissed and the writ is denied. Additionally, as Moore makes no
substantial showing of a denial of a constitutional right, a certificate of appealability

14

will not issue. 28 U.S.C. § 2253. The Court certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal from this Order would not be taken in good faith, and
therefore in forma pauperis status is denied for the purpose of an appeal. See

Coppedge v. United States, 369 U.S. 438, 444-5 (1962).
The Clerk of Court is directed to enter judgment and to close this case.
SO ORDERED.
Dated: Brooklyn, New York
April 4, 2014

/_
s/Eric N. Vitaliano
- - · , c=· ,,

ERIC N. VITALIANO
United States District Judge

15

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ac