Krivoi v. Chappius
Filing
15
MEMORANDUM AND ORDER - Because the Court has considered all of Petitioner's arguments and found them, on balance, meritless, the petition is DENIED. At the same time, a certificate of appealability shall issue as the Petitioner has raised a subs tantial showing of the denial of a constitutional right - specifically, the adjudged Bruton violation and, potentially, the alleged Brady violation - as well as the combination of those issues and procedural irregularities attendant thereto (such as trial court's quashing of the subpoena without making a record and excluding the defense), even though those denials may well have been harmless error. Here, the Court finds "that reasonable jurists could debate whether (or, for that matter , agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further". As to all grounds other than those related to the Bruton and alleged Brady issues, a certificate of appealability shall not issue because Petitioner has not made a substantial showing that he was denied any constitutional rights. SO Ordered by Judge Gary R. Brown on 11/19/2021. (Tirado, Chelsea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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Marat Krivoi,
FILED
CLERK
4:06 pm, Nov 19, 2021
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Petitioner,
MEMORANDUM AND ORDER
13-CV-3533 (GRB)
-againstPaul W. Chappius, Jr.,
Superintendent, Elmira Correctional Facility
Respondent.
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GARY R. BROWN, United States District Judge:
Petitioner Marat Krivoi (“Petitioner”) petitions this Court for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence for two counts of Murder
in the Second Degree (N. Y. Penal Law § 125.25[1]) in the Supreme Court of the State of New
York, Kings County (the “trial court”). On this petition, Petitioner raises several claims, as
follows:
•
A Brady claim arising out of the State’s failure to disclose exculpatory statements by his
ex-wife Alesya Nayfeld’s which would have impeached the state’s lead witness;
•
A Bruton claim arising out of the trial court’s admission of redacted statements made by
codefendant Vitaly Ivanitsky, who was tried jointly with Petitioner before a separate jury;
•
A due process claim arising out of the trial court’s exclusion of an FBI report of an
interview with an unavailable witness; and
•
The cumulative effect of these errors, allegedly depriving Petitioner of a fundamentally fair
trial.
1
For avoidance of doubt, in this case the Court must grapple with an established Bruton violation
(as found by the state appellate court) and seemingly improper conduct by the prosecution in
connection with the alleged Brady violation. Indeed, the main factor which permits this conviction
to narrowly pass constitutional muster is the strength of the evidence, in particular, recorded
admissions by Petitioner which appear, in the context of this matter, unassailable. Ultimately,
therefore, under the applicable standards, these claims do not warrant habeas relief because, taken
singly or in combination, none emanate from a decision that was contrary to, or an unreasonable
application of, clearly established federal law, so the petition is denied. At the same time, this
Court also certifies this matter for appeal to the United States Court of Appeals for the Second
Circuit.
I. FACTUAL BACKGROUND
The Boris Roitman Murder
On August 26, 1992, police found the body of Boris Roitman in Brooklyn near the
intersection of Avenue Z and Shell Road. Tr. at 1022-26. According to testimony from Pyotr
Sarkisov, who met Petitioner through an acquaintance in 1991 and testified as a cooperating
witness at trial, Petitioner wanted to kill Roitman because he suspected Roitman was a police
informant after they were nearly caught in a failed burglary designed by Roitman. Tr. at 340-41,
366-69, 371-77. Petitioner fashioned a plan to kill Roitman with Sarkisov and Ivanitsky by luring
Roitman to a building late at night under the guise of showing him a place to burglarize. On
August 26, 1992, Revaz Gogiya, a non-cooperating witness, dropped Roitman off at a restaurant
in Brighton Beach, and Gogiya saw Roitman drive away with the Petitioner. Tr. at 181-82, 18790, 193, 199, 230-31. While Ivanitsky acted as a lookout, Tr. at 440, 459, Petitioner led Roitman
down a pathway between the apartment building and the tennis courts, Tr. at 442-43. Sarkisov
2
leapt from his hiding spot behind a bush and shot Roitman. Tr. at 442-43, 447, 913. Petitioner
told Sarkisov to shoot Roitman again, which he did. Tr. at 447-48. Immediately after the shooting,
eyewitness Pal Karpaty saw two individuals walking away from the scene of the crime. Tr. H.
6/13/07 at 4; Tr. H. 6/19/07 at 48-49. Later that evening, Karpaty told the police he saw one of
the perpetrators holding a long shotgun. DE 4-16 at 24. However, Karpaty was unable to identify
Petitioner as one of the assailants when shown a photo of Petitioner. DE 10-8 at 2. A police officer
found Roitman’s body later that evening, and a medical examiner determined the cause of death
was multiple gunshot wounds to the chest and neck. Tr. at 1022-26, 1254-55. A ballistics expert
concluded that the discharged shell found near Roitman’s body came from a shotgun the FBI
recovered from the wife of Artur Drubetskiy, who obtained Petitioner’s weapons from Sarkisov
following the murder. Tr. at 671-72, 899, 933-35, 1820-26, 1965-66. 1
The Thien Diep Murder 2
On the evening of September 22, 1992, Petitioner played pool with Thien Diep at a billiards
hall on Coney Island Avenue. Tr. at 496-98. Diep, one of the pool hall’s best players, owned an
expensive pool cue he carried in a hard leather case. Tr. at 496-98, 501, 2166-70. Petitioner,
armed with a .380 Colt pistol, told cohorts that he wanted to rob Diep because Diep was a pimp
who had lots of cash. Tr. at 498-99, 509, 837-38. As Diep walked toward his car after leaving the
pool hall, Petitioner ran up to him, put a gun to his head, and told him to hand over the keys. Tr.
at 508-09. Vitaly Ivanitsky, a codefendant with whom Petitioner played pool, Tr. at 265, 268-71,
The ballistics expert came to this conclusion by analyzing the marks made by the breech face of the shotgun on the
brass head stamp of the shotgun shell. Tr. at 1822-27, 1965-66. Although this ballistics analysis was not conclusive,
courts in this Circuit have permitted ballistics examiners to testify that a firearms match is “more likely than not.” See
United States v. Glynn, 578 F. Supp. 2d 567, 574-75 (S.D.N.Y. 2008).
2
Most of the narrative about the Thien Diep murder is derived from the trial testimony of Sarkisov. However, this
testimony is corroborated in several important respects, including admissions made by Petitioner, ballistics analysis,
recordings in prison, and testimony from Natan Gozman.
1
3
307, took the driver’s seat while Sarkisov took the passenger seat, and Petitioner forced Diep into
the rear, Tr. at 509-10. The four men drove off, with Petitioner telling Ivanitsky to drive towards
Diep’s home. Tr. at 513-14. After Diep told Petitioner his whole family was home, Petitioner
tried to find out if Diep kept money elsewhere. Tr. at 517. When Diep threatened Petitioner by
telling him that his uncle belonged to a gang in Chinatown, Petitioner shot Diep twice in the back
of the car. Tr. at 518-20, 523-24. To destroy the evidence, the men burned the car with Diep’s
body in an isolated park. Tr. at 525-28, 537, 548, 555-56.
Before burning the car, Petitioner took the leather case containing Diep’s pool cue from
the back seat. Tr. at 544-45, 549. Firefighters put out the fire that morning and, chillingly, a
neighborhood boy found Diep’s charred remains inside the car three days later. Tr. at 1195-96,
1209, 1131-36. The medical examiner concluded that Diep had been shot at least twice in the head
before being burned, Tr. at 1260-67, and a ballistics expert concluded that the two bullet jackets
recovered from Diep could have been fired by a Colt Government Model .380 Auto, Tr. at 184952, 1856-58. Following Diep’s death, Natan Gozman, an associate of Petitioner who testified as
a cooperating witness at trial, saw Petitioner at a pool hall with a pool cue and hard leather case
that resembled Diep’s. Tr. at 2166-72, 2498-99.
Sarkisov and Gozman’s Cooperation Agreement
After pleading guilty to federal racketeering charges, in 2005 Sarkisov revealed the
Roitman and Diep murders pursuant to a cooperation agreement. Tr. at 242-44, 600-14, 619-50.
Gozman also testified pursuant to a cooperation agreement, Tr. at 2181-82, 2187-89, 2291-96,
2435, which he entered into after spending about five weeks at the Brooklyn Metropolitan
Detention Center with Sarkisov, Tr. at 2428, 2804-05. Sarkisov and Gozman were close friends
who had committed numerous crimes together. Tr. at 250-52, 263, 271, 275-316, 2071, 2237.
4
Gozman and Sarkisov stated at trial that they each independently decided to cooperate with the
government, without knowing what each other had decided to do. Tr. at 2427-31.
In 2006, the FBI and NYPD arrested Ivanitsky and questioned him regarding the murders
of Roitman and Diep, Tr. at 1306-16, 1373-84, and the Brooklyn DA’s Office indicted Petitioner
and Ivanitsky with three counts of Murder in the Second Degree, Sup. Ct. Kings Cnty. Ind. No.
1634/2006.
Petitioner’s Incriminating Statements in Prison
While in prison for crimes unrelated to the murders of Roitman and Diep, Petitioner made
several incriminating statements in 1996 and 2006. Tr. at 572-73, 2499-500, 2528-29. Gozman
testified that when he visited Petitioner in prison in 1996 Petitioner said he killed Roitman because
he was an informant. Tr. at 2102-03, 2425-26. Petitioner also told Gozman he could borrow his
weapons from Artur Drubetskiy, who had his weapons. Tr. at 2106-07. Petitioner told Gozman
that he owned a shotgun, an AK-47, and a “dirty pistol,” which Gozman understood to mean a
pistol that had been used to kill someone. Tr. at 2106-07, 2460-61. Gozman borrowed the pistol
for a meeting with gangsters, but subsequently threw it into a sewer because it was “dirty.” Tr. at
2111-12.
After Ivanitsky was arrested for the murders of Roitman and Diep, Tr. at 1300-02, 136469, in March 2006, David Mitnitsky told Petitioner in a recorded phone call that “the bull
[Ivanitsky] 3 got taken in.” Tr. at 2650. Petitioner replied, “Oh, God” and asked, “For what?” Tr.
at 2650. Mitnitsky replied, “For some old shit” that happened in 1992 and 1993. Tr. at 2650.
Petitioner replied, “Oh my God oh my God.” Tr. at 2651. Petitioner asked, “What could there be
in 1992?” Tr. at 2651. Mitnitsky told Petitioner that Ivanitsky had been charged with “[t]wo
3
“Bull” is Ivanitsky’s nickname. Tr. at 2076.
5
felony murders or something.” Tr. at 2651. Defendant responded, “Oh shit . . . I’m scared shitless
. . . (my ass is cracking).” Tr. at 2651.
In another call later that month, Dimitri Fritnitsky told Petitioner that that they were trying
to get Ivanitsky for “some Chinese guy from the billiard hall,” to which Petitioner responded, “Oh
shit, why did they take him now, all of a sudden?” Tr. at 2667. Fritnitsky told Petitioner that
Ivanitsky thought Sarkisov was the informant. Tr. at 2667. During another call, Fritnitsky told
Petitioner that court documents stated “[s]omething happened in the pool hall . . . that that guy shot
him, and then someone burned down some car somewhere on 80th Street.” Tr. at 2671. Petitioner
asked if the documents specified whom Ivanitsky was with, and Fritnitsky told Petitioner it said
there was “some other accomplice.” Tr. at 2671.
The Tennis Bag and Alesya Nayfeld’s Exculpatory Statements
When Sarkisov visited Petitioner in prison in early 1993, Petitioner told Sarkisov he could
use his guns. Tr. at 573-80, 670-71. According to Sarkisov, Petitioner owned three guns: a .380
Colt handgun/pistol, a black pump action shotgun, and an AK-47 rifle. Tr. at 341-50, 889-92, 897,
933.
Petitioner’s brother had purchased the shotgun, and the AK-47 was stolen from an
acquaintance in March 1992. Tr. at 1082-1102, 1619-34. Sarkisov testified that he picked up a
colorful tennis bag containing Petitioner’s three guns from Alesya Nayfeld, whom Petitioner
married in early 1993 while in prison. Tr. at 418-22, 574-79, 651-58, 662-66, 836, 881, 889-92,
933-34. When Sarkisov was later arrested for crimes unrelated to the Roitman and Diep murders,
he instructed Artur Drubetskiy to remove the tennis bag with the guns from Sarkisov’s house. Tr.
at 587-88, 671-72, 836-37, 933-35. On July 13, 2005, an FBI agent obtained from Artur
Drubetskiy’s wife a tennis bag containing, among other items, a shotgun, shotgun slugs, and an
AK-47. Tr. at 1292-97, 1352.
6
In two interviews in March and May 2007, Nayfeld told prosecutors she did not recognize
the tennis bag the FBI seized from Artur Drubetskiy’s wife in 2005. DE 13-3 at 79-80. At the
commencement of the trial on July 3, 2007, Nayfeld’s attorney moved to quash the subpoena to
have her testify. The trial court stated on the record that Nayfeld’s attorney “made a motion to
quash a subpoena that had been issued to -- issued on behalf of the District Attorney’s office and
relating to Alyessa [sic] … that has been resolved[,]” and her attorney “respectfully withdr[e]w
the motion.” Tr. at 2-3. 4 Two months following Petitioner’s conviction in August 2007, a private
investigator located Nayfeld in New Jersey. Nayfeld said that she told the FBI she never gave a
tennis bag to Sarkisov, the FBI threatened to take away her children if she did not tell the truth,
and she told the prosecutors at the DA’s Office that she never gave the tennis bag to Sarkisov. DE
13-3 at 109-10. In a 2013 affidavit submitted as an exhibit to Petitioner’s § 440.10 motion to
vacate the judgment, Nayfeld claimed she told the FBI that she “had never been in possession of
any type of tennis bag like that or anything similar.” DE 13-3 at 126. Her affidavit did not mention
being threatened by the FBI. DE 13-3 at 126.
Exclusion of the FBI 302 Report
Prior to trial, defense counsel requested a hearing on the reliability of the FBI 302 report
memorializing FBI Agent Eric Rivera’s 2005 interview with Karpaty. The 302 report noted that
Karpaty, a former member of the Hungarian Special Forces who was familiar with weapons, stated
one of the individuals he saw after the shooting was holding a double-barreled shotgun. DE 13-3
at 107. Although both parties wanted to call Karpaty as a witness, he disappeared before trial. Tr.
H. 6/13/07 at 3-11, 19-20, 32, 57; Tr. H. 6/18/07 at 4, 15. The court declined to hold a hearing or
According to defense counsel, the trial court had a sidebar off the record with prosecutors and Nayfeld’s attorney,
and the defense was unaware of what was occurring. DE 14 at 6, n.2.
4
7
admit the 302 report into evidence, finding the report lacked sufficient indicia of reliability. Tr.
H. 6/19/07 at 49-62.
The Bruton Violation
Prior to trial, the court also held a conference to determine how Ivanitsky’s statements
would be redacted to comply with Bruton. Petitioner and Ivanitsky were tried jointly before two
juries for the murders of Roitman and Diep. The court ruled Detective Peter McMahon could
testify that Ivanitsky said he saw “his friends” burn a car. Tr. H. 6/20/07 at 112-52, 133-34, 15051. In front of Petitioner’s jury, Detective McMahon related what Ivanitsky told him regarding
the murder of Diep during his interrogation at the Brooklyn DA’s Office:
Q. And did [Ivanitsky] mention anything about the location at that point in the
conversation? Where the car burning took place?
A. We spoke to [Ivanitsky] about where the location was, and [Ivanitsky] could not
describe exactly where it was, except that [Ivanitsky] said that it was in like a secluded
area. There were a lot of weeds around. It was like in the back of like a park area.
Q. Did you ask [Ivanitsky] if he said anything to his friends about identifying anybody
when he saw the car being burned by him?
[Defense Counsel] Mr. Breitbart: Objection, Your Honor. This is the Bruton situation.
The Court: The objection is overruled. Proceed.
A. . . .[H]e told me that he went up to his friends after the car was set on fire and he said,
you know, “What was that? What’s going on?” And they said, “Never mind, it’s none of
your concern. Let’s get out of here”
Tr. at 1378-79 (emphasis added).
At summation, the prosecution argued:
[ADA] Blank: And there’s more evidence and it comes out of Vitaly Ivanitsky’s mouth.
Vitaly Ivanitsky told the agents certain things about Boris Roitman. That he knew him, that
he was killed by Avenue Z, that he was killed by a shotgun, with a shotgun you heard from
Natan Gozman.
Tr. at 3293.
The court denied defense counsel’s request for a limiting instruction that Detective McMahon’s
testimony could only be used as evidence against Ivanitsky. Tr. at 1318-19, 1446-48.
8
The jury convicted defendant on August 10, 2007. Tr. at 3403-07. On January 31, 2008,
defendant was sentenced to two consecutive prison terms of twenty-five years to life. Tr. H.
1/31/08 at 7.
State Court Post-Conviction Proceedings
Petitioner moved the trial court to set aside the verdict pursuant to C.P.L. § 330.30, alleging
that the prosecution committed a Brady violation by failing to disclose Nayfeld’s statements. On
January 30, 2008, the court rejected Petitioner’s claim, DE 13-3 at 112-25, and the Appellate
Division affirmed Petitioner’s conviction on February 22, 2011, People v. Krivoi, 81 A.D.3d 978
(2d Dep’t 2011). The Appellate Division held (1) the trial court “erroneously admitted into
evidence the redacted statements made by the codefendant” in violation of Bruton but found the
error harmless beyond a reasonable doubt because it was “satisfied that the evidence of the
defendant’s guilt, without reference to the error, was overwhelming, and there is no reasonable
possibility that the error might have contributed to the defendant’s conviction” and (2) the
Petitioner’s Brady claim based on the alleged suppression of Nayfeld’s denial of transferring the
tennis bag to Sarkisov was not reviewable on direct appeal because that claim “dehors the record.”
Krivoi, 81 A.D.3d at 979. Although the Appellate Division did not specifically address Petitioner’s
argument that the trial court denied him the right to present a defense by excluding the 302 report,
the Appellate Division summarily held that his “remaining contentions … are without merit.” Id.
at 980. Defense counsel applied to the New York Court of Appeals for leave to appeal, which the
court denied on March 27, 2012. People v. Krivoi, 18 N.Y.3d 959 (2012) (Lippman, Ch. J.).
On October 5, 2013, the Petitioner moved this Court to stay adjudication of his habeas
corpus petition so that he could exhaust his state remedies with respect to the Brady claim, DE 5,
which this Court granted, DE 8. On October 7, 2013, Petitioner filed a motion to vacate judgment
9
pursuant to C.P.L. § 440.10 in Supreme Court, Kings County on the grounds of fraud upon the
court and prosecutorial misconduct arising out of the prosecution’s alleged suppression of Alesya
Nayfeld’s statements that she never gave Sarkisov the tennis bag containing the guns. DE 13-4 at
39-49. The Supreme Court held that Petitioner did not establish suppression of evidence because
“[e]vidence is not suppressed where the defendant knew or should reasonably have known of, the
evidence and its exculpatory nature,” DE 9-2 at 6-7 (citation omitted):
Nayfeld was defendant Krivoy’s ex-wife and he knew, prior to trial, that she was a potential
prosecution witness. He would also have known whether he had given the tennis bag
containing his weapons to Nayfeld and whether he had ever told Sarkisov to collect them
from her, as Sarkisov testified at trial.
Sarkisov’s trial testimony concluded on July 13, 2007 and the People rested their case on
August 7, 2007, giving the defendant ample time to contact Nayfeld about her potential
testimony. The defense investigator was able to contact Nayfeld immediately after trial and
the defendant offers nothing to show that he was unable to contact her earlier. Therefore,
defendant Krivoy knew of, or should reasonably have known of Nayfeld’s potential
exculpatory statements regarding the bag and its contents. If the People had turned over
Nayfeld’s statements to the defense, the statements would not have revealed any essential
fact or evidence that Krivoy did not know prior to trial.
DE 9-2 at 6-7.
The court went on to find there was no “reasonable probability” that Nayfeld’s statements, even if
credited, would have changed the jury’s verdict:
The challenged testimony involved an incident that took place after the two murders and
was not an element of either of the charged murders, but was offered as background
information to explain how the guns came to be in the possession of Drubetsky’s [sic] wife.
The evidence that Sarkisov obtained the bag containing defendant Krivoy’s weapons from
Nayfeld in 1993 was introduced to show that defendant Krivoy retained control over the
weapons after he went to jail in 1992 and to show the chain of custody of those weapons
between the murders in 1992 and their recovery from Drubetsky’s wife in 2007. The only
part of the chain of custody that was not corroborated by another witness or by the recovery
of the guns is that Sarkisov obtained them from Nayfeld.
Any denial by Nayfeld that she recognized or possessed the bag of weapons or that she
transferred them to Sarkisov, if credited by the jury, would at best have served to impeach
Sarkisov’s testimony on a minor matter. There is no probability that such impeachment
would have affected the outcome of the trial. Such testimony would have required the jury
10
to make a credibility determination between defendant Krivoy’s former criminal associate,
and his ex-wife, who may not have wanted to admit any possible involvement in or
knowledge of, the defendant’s criminal activities. It would not have undermined the
credibility of Sarkisov’s testimony that he passed possession of the bag of weapons to
Drubetsky, that Gozman disposed of the .380 pistol in 1996, or that the shotgun used in the
Roitman murder was recovered in that bag from Drubetsky’s wife in 2007, along with the
AK-47 rifle the witnesses described. Nor would it have undermined the testimony that
defendant Krivoy possessed the weapons prior to the murders in 1992 or that Sarkisov
killed Roitman with the shotgun and defendant Krivoy killed Diep with the .380 pistol.
It is highly unlikely that the jury’s determinations of Sarkisov’s credibility would have
been undermined by the addition of Nayfeld’s impeaching statements. Sarkisov was
extensively cross-examined by both defendants at trial. The jury learned that Sarkisov was
the person who shot and killed Roitman, that he actively participated in the car jacking
kidnapping and robbery of Diep and in the arson used to dispose of and disguise Diep’s car
and body. They also learned that Sarkisov was a career criminal who had engaged in violent
crimes and racketeering, including murder, robbery, extortion, money laundering and other
organized crime activities. They knew of his guilty pleas and his cooperation agreement
and the sentence benefit he hoped to obtain by testifying against the defendant. They also
knew that he had initially lied to the FBI when he failed to disclose the Roitman and Diep
murders in his first cooperation agreement and that he did not come clean about them until
directly confronted by the FBI.
Knowing all of this, the jury nevertheless credited Sarkisov’s testimony and there is little
possibility, let alone a reasonable probability, that its determination would have differed if
Nayfeld had testified that she had not transferred the bag of weapons to Sarkisov.
DE 9-2 at 8-9 (citations omitted).
The Appellate Division affirmed, finding “there was no reasonable possibility that such
nondisclosure affected the outcome of the trial.” People v Krivoy, 135 A.D.3d 876, 877 (2016).
Petitioner applied to the New York Court of Appeals for leave to appeal, which was denied on
April 18, 2016. People v. Krivoy, 27 N.Y.3d 1001 (2016) (Pigott, J.). On September 2, 2016,
Petitioner filed his amended habeas petition. DE 10. This opinion follows.
II. DISCUSSION
A. Standard of Review
This petition is reviewed under the well-established standard of review of habeas corpus
petitions, including the authority of this Court to review such matters, the application of the
11
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the exhaustion doctrine, the
independent and adequate procedural bar, the cause and prejudice exception, AEDPA deference,
the evaluation of claims of ineffective assistance of counsel and Brady violations, as more fully
discussed in Licausi v. Griffin, 460 F. Supp. 3d 242, 255–60 (E.D.N.Y. 2020), appeal
dismissed, No. 20-1920, 2020 WL 7488607 (2d Cir. Nov. 17, 2020). The discussion of these
principles set forth in Licausi is incorporated herein by reference.
B. The Instant Petition
Brady Claim
First, Petitioner argues that the state committed a Brady violation by withholding Nayfeld’s
exculpatory statement that she never transferred the tennis bag of weapons to Sarkisov. “There
are three essential elements of a Brady violation: ‘The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’”
Licausi, 460 F. Supp. 3d at 260 (quoting Banks v. Dretke, 540 U.S. 668, 691 (2004)). However,
“[e]vidence is not considered to have been suppressed within the meaning of the Brady doctrine if
the defendant or his attorney either knew, or should have known, of the essential facts permitting
him to take advantage of that evidence.” See United States v. Rowland, 826 F.3d 100, 113 (2d Cir.
2016) (citation omitted). “Prejudice can be shown when ‘there is a reasonable probability that,
had the evidence been disclosed, the result of the proceeding would have been different. In other
words, favorable evidence is subject to constitutionally mandated disclosure when it could
reasonably be taken to put the whole case in such a different light as to undermine confidence in
the verdict.’” Licausi, 460 F. Supp. 3d at 260 (quoting Cone v. Bell, 556 U.S. 449, 470 (2009)).
12
The state court concluded there was no reasonable probability that the outcome of the trial
would have been different had the state disclosed that Nayfeld denied ever giving Petitioner’s
tennis bag of guns to Sarkisov. See Krivoy, 135 A.D.3d at 877; DE 9-2 at 8-9. The jury had before
them overwhelming evidence of the Petitioner’s guilt, to wit: extensive testimony by Sarkisov, a
first-hand witness to the murders of Roitman and Diep; recordings of Petitioner expressing
consternation – if not panic – upon learning of an investigation into Ivanitsky regarding two
murders in 1992; Gogiya’s testimony that he saw Petitioner drive off with Roitman on the night
of Roitman’s murder; Gozman’s testimony that Petitioner possessed Diep’s pool cue after his
murder and confessed to killing Roitman because he was believed to be an informant; and expert
witness testimony connecting the ballistics evidence to the murder weapons. Given all of this
evidence – combined with Petitioner’s alarmingly incriminating statements upon learning of the
investigation into the two 1992 murders that “I’m scared shitless,” Tr. at 2651, and “Oh shit, why
did they take [Diep] now, all of a sudden,” Tr. at 2667 – the failure to disclose Nayfeld’s
exculpatory testimony does not sufficiently undermine confidence in the verdict to warrant habeas
relief.
Moreover, the disputed transfer of the murder weapons from Nayfeld to Sarkisov may not
have been essential to the government’s case. The state court observed that Nayfeld’s testimony
would not have “undermined the testimony that defendant Krivoy possessed the weapons prior to
the murders in 1992 ….” DE 9-2 at 9 (emphasis added). Additionally, Gozman testified that
Petitioner told him he could borrow the weapons from Drubetskiy, Tr. at 2106-07, from whom the
FBI recovered the weapons that were linked to the murders of Roitman and Diep. Hence, the State
established Petitioner’s connection to the murder weapons independent of the disputed transfer
from Nayfeld to Sarkisov. Although Nayfeld’s testimony could have bearing on Sarkisov’s
13
credibility, Nayfeld’s testimony could not directly impact Gozman, whose testimony further tied
Petitioner to the murder weapons.
Additionally, as the state court observed, “[Nayfeld’s]
testimony would have required the jury to make a credibility determination between defendant
Krivoy’s former criminal associate, 5 and his ex-wife, who may not have wanted to admit any
possible involvement in or knowledge of, the defendant’s criminal activities.” DE 9-2 at 8-9. For
these reasons, the state court’s determination that no prejudice resulted from the state’s failure to
disclose Nayfeld’s exculpatory testimony, was neither “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court” nor “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). 6
Bruton Claim
This should in no way suggest that the credibility of Sarkisov’s testimony was unassailable. For example, though
not raised below, elements of his testimony concerning the murder of Diep appear facially questionable. Sarkisov
testified that Petitioner shot Diep twice – several minutes apart – with a .380 pistol in the back seat of an automobile
travelling at highway speeds on the Belt Parkway. Given that the report of a .380 has been measured at 157 db
(https://earinc.com/gunfire-noise-level-reference-chart/), far louder than a jet plane, that Sarkisov claims a cohort
could and did continue to drive apparently unaffected by these shots inside the car strains credulity. More importantly,
the principal corroboration for Sarkisov’s testimony comes from Gozman: that the two main witnesses were close
friends who spent five weeks together in custody immediately prior to entering a cooperation agreement, Tr. at 2428,
2804-05, provides far less assurance than had the circumstances been otherwise. Compare Gutierrez v. McGinnis, 389
F.3d 300, 309 (2d Cir. 2004) (“the cooperators’ testimony established that the cooperators acted independently from
one another in testifying against petitioner, as the cooperators testified to having had no contact with each other
following their arrests”). Such issues heighten concerns around the claimed Brady violation.
6
Despite finding that no prejudice resulted in this case, this opinion should not be construed to condone the State’s
failure to disclose Nayfeld’s statements, which was highly inadvisable if not reckless. That failure was compounded
by the trial court’s determination to quash the state’s subpoena to Nayfeld in an off-the-record sidebar from which the
defense was purportedly excluded. Tr. at 2-3; DE 14 at 6, n.2. The state court’s determination that no Brady violation
occurred because Petitioner should have known the essential facts permitting him to take advantage of Nayfeld as a
potentially impeaching witness appears consistent with Second Circuit precedent. DE 13 at 40 (citing United States
v. Rowland, 826 F.3d 100, 113 (2d Cir. 2016)); see also United States v. Stewart, 513 F.2d 957, 960 (2d Cir. 1975)
(“The government is not required to make a witness’ statement known to a defendant who is on notice of the essential
facts which would enable him to call the witness and thus take advantage of any exculpatory testimony that he might
furnish.”). Thus, the state court’s finding that no suppression occurred because Petitioner knew or should have known
the essential facts permitting him to take advantage of the exculpatory evidence was not “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. §
2254(d). It is, however, a close call, and the state’s conduct remains troubling.
5
14
On appeal, the Appellate Division held that “the Supreme Court erroneously admitted into
evidence the redacted statements made by the codefendant.” People v. Krivoi, 81 A.D.3d 978, 979
(2011) (citing Gray v. Maryland, 523 U.S. 185 (1998); Bruton v. United States, 391 U.S. 123
(1968); Crawford v. Washington, 541 U.S. 36 (2004)). At the same time, that court found that “we
are satisfied that the evidence of the defendant's guilt, without reference to the error, was
overwhelming, and there is no reasonable possibility that the error might have contributed to the
defendant’s conviction. Thus, the error was harmless beyond a reasonable doubt.” Krivoi, 81
A.D.3d at 979. A harmless Bruton error is insufficient to vacate a conviction on habeas. See
Brown v. United States, 411 U.S. 223, 231 (1973) (holding the Bruton errors harmless because
“[t]he testimony erroneously admitted was merely cumulative of other overwhelming and largely
uncontroverted evidence properly before the jury”). A constitutional error is harmless unless it
“had substantial and injurious effect or influence in determining the jury’s verdict.” Fry v. Pliler,
551 U.S. 112, 116 (2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)). The Second
Circuit has summarized the relevant factors in the harmlessness calculation as follows:
In assessing “whether the erroneous admission of evidence had a substantial and injurious
effect on the jury’s decision, [we consider] the importance of the ... wrongly admitted
[evidence], and the overall strength of the prosecution’s case.” Wray v. Johnson, 202 F.3d
515, 526 (2d Cir. 2000), citing Brecht, 507 U.S. at 639, 113 S.Ct. 1710. The importance of
wrongly admitted evidence is determined by “the prosecutor’s conduct with respect to the
... evidence,” Zappulla, 391 F.3d at 468, whether the evidence “bore on an issue ... plainly
critical to the jury’s decision,” and “whether [it] was material to the establishment of the
critical fact, or whether it was instead corroborated and cumulative,” Wray, 202 F.3d at
526 (internal quotation marks omitted).
Wood v. Ercole, 644 F.3d 83, 94 (2d Cir. 2011).
Thus, while the state court recognized that a Bruton violation occurred, it concluded that
the state presented overwhelming evidence of Petitioner’s guilt at trial and that, by comparison,
the prejudicial effect of the Bruton violation was slight. In describing Ivanitsky’s statements under
15
interrogation, Detective McMahon never mentioned Petitioner by name.
Rather, Detective
McMahon merely stated that Ivanitsky mentioned the presence of multiple “friends” at the arson,
any one of whom could have been the offender. Although the prosecutor referenced other parts of
Ivanitsky’s testimony during summation, he did not mention Ivanitsky’s statement that his
“friends” burned the car. Compared to Sarkisov’s extensive testimony inculpating Petitioner in
the murders, Ivanitsky’s statement appears unimportant. During deliberations, the jury did not ask
any questions regarding Ivanitsky’s statement to Detective McMahon. Tr. at 3371-73, 3384-3402.
For these reasons, the Appellate Division reasonably concluded that Ivanitsky’s reference to the
presence of “friends” at the arson did not have a substantial and injurious effect or influence in
determining the jury’s verdict, and thus the Bruton violation and failure to give a limiting
instruction were harmless error. 7
Exclusion of the 302 Report
Petitioner argues that the 302 report containing Karpaty’s statement that he saw a doublebarreled shotgun at the scene of Roitman’s murder should have been admitted into evidence, and
this Court should hold an evidentiary hearing to have Agent Rivera testify as to what Karpaty said
in the 2005 interview because the state court denied Petitioner the opportunity. DE 10-8 at 43-44.
“The right to present a defense is one of the ‘minimum essentials of a fair trial.’” Rosario v.
Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988) (quoting Chambers v. Mississippi, 410 U.S. 284, 294
(1973)). A defendant has a constitutional right to introduce secondary forms of evidence, e.g.,
hearsay, when the evidence bears sufficient indicia of reliability and the declarant is unavailable.
See Rosario, 839 F.2d at 924. However, the criminal defendant “must comply with established
It remains nothing less than astonishing that after undergoing the extensive precaution of holding trial before two
juries, the State elicited, and the trial court permitted over defense objection, this testimony in seeming violation of
Petitioner’s Confrontation Clause rights.
7
16
rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment
of guilt and innocence.” Chambers, 410 U.S. at 302. “For the exclusion of evidence to violate
this right by denying the accused a fundamentally fair trial, the evidence must be ‘material,’ in the
constitutional sense that it ‘creates a reasonable doubt that did not otherwise exist’ as evaluated ‘in
the context of the entire record.’” Jimenez v. Walker, 458 F.3d 130, 146 (2d Cir. 2006) (quoting
United States v. Agurs, 427 U.S. 97, 112-13 (1976)). “If there is no reasonable doubt about guilt
whether or not the additional evidence is considered, there is no justification for a new trial.”
Agurs, 427 U.S. at 112-13. But “if the verdict is already of questionable validity, additional
evidence of relatively minor importance might be sufficient to create a reasonable doubt.” Id. at
113. Under certain circumstances, the exclusion of evidence on the basis of a valid application of
the hearsay rules may violate due process if the evidence is sufficiently reliable and crucial to the
defense. See, e.g., Chambers, 410 U.S. at 302 (finding that the state’s common law “voucher rule”
precluding the defense from impeaching their own witness violated due process).
The Appellate Division reasonably concluded that Petitioner’s right to present a defense
claim lacked merit. Krivoi, 81 A.D.3d at 980. The trial court properly excluded the 302 report
from evidence as the unsworn statement did not fall under any recognized hearsay exception. The
302 report lacked sufficient indicia of reliability because the report was made 13 years after the
murder, there was no evidence corroborating Karpaty’s observation of a double-barreled shotgun,
and he failed to mention that the shotgun was double-barreled when he was interviewed by the
NYPD shortly after the crime. Moreover, the evidence of Petitioner’s guilt was overwhelming.
Indeed, the FBI’s ballistics analysis concluded that the discharged shell found near Roitman’s body
came from the shotgun recovered from Drubetskiy’s wife. Tr. at 1820-26, 1965-66. Karpaty’s
statement 13 years later that he saw a double-barreled shotgun at night as the assailants – whom
17
he could not identify – ran away, does not create a reasonable doubt as to Petitioner’s guilt when
taken in the context of all the evidence. Thus, under AEDPA’s highly deferential standard of
review, it cannot be said that the state court’s decision was an unreasonable application of
Chambers v. Mississippi, 410 U.S. 284, 294 (1973), which concerned the application of a common
law rule preventing the defense from impeaching its own witness.
Finally, Petitioner is not entitled to an evidentiary hearing to permit Agent Rivera to testify
about Karpaty’s statements. Because the state court decided Krivoi’s claims on the merits 8 and
the court’s rejection of defendant’s claim was not an unreasonable application of clearly
established federal law, this court’s review is limited to the record that was before the state court.
See Cullen v. Pinholster, 563 U.S. 170, 184-85 (2011). Krivoi’s reliance on Lopez v. Miller is
misplaced – in that case the district court found that the petitioner had a strong chance of satisfying
§ 2254(d) because it appeared the state court’s decision was based on an unreasonable
determination of the facts. See 906 F. Supp. 2d 42, 58 n.9 (E.D.N.Y. 2012). Here, the Court finds
the state court reasonably applied clearly established federal law and based its decision on a
reasonable determination of the facts. Thus, under Pinholster, Petitioner is not entitled to an
evidentiary hearing.
Cumulative Effect
Finally, Petitioner challenges the cumulative effect of the errors – which for these purposes
include the established Bruton violation and the alleged Brady issue. “[T]he cumulative effect of
a trial court’s errors, even if they are harmless when considered singly, may amount to a violation
Although the Appellate Division did not specifically address Petitioner’s argument that the trial court denied him the
right to present a defense by excluding certain evidence, the Appellate Division held that his “remaining contentions
… are without merit.” Krivoi, 81 A.D.3d at 980. Thus, the issue was decided on the merits. See Holland v. Donnelly,
324 F.3d 99, 101 n.2 (2d Cir. 2003) (per curiam) (Appellate Division’s statement that “defendant’s remaining
contentions are without merit” is an adjudication on the merits entitled to AEDPA deference).
8
18
of due process requiring reversal of a conviction.” United States v. Al-Moayad, 545 F.3d 139, 178
(2nd Cir. 2013). See, e.g., Taylor v. Kentucky, 436 U.S. 478, 487, n.15 (1978) (finding that “the
cumulative effect of the potentially damaging circumstances of this case violated the due process
guarantee of fundamental fairness in the absence of an instruction as to the presumption of
innocence”).
Infractions that violate fundamental fairness must violate “those fundamental
conceptions of justice which lie at the base of our civil and political institutions, and which define
the community’s sense of fair play and decency.” Dowling v. United States, 493 U.S. 342, 35253 (1990).
Like other claims, a cumulative error claim must be exhausted in state court before seeking
habeas relief. 28 U.S.C. § 2254(b)(1)(A); Jimenez, 458 F.3d at 149. Here, on appeal of the denial
of his motion to vacate the judgment, Petitioner asked the Appellate Division to consider the
cumulative effect of the Brady and Bruton claims. DE 13-3 at 43-44. Hence, Petitioner has
exhausted the cumulative effect of these claims.
It is difficult to evaluate the cumulative effects of these errors. However, several pieces of
powerfully incriminating evidence – in particular, Petitioner’s recorded admissions and the
testimony of an independent, non-cooperating witness who observed Petitioner drive away with
Roitman on the night of the latter’s homicide – are entirely independent of the Brady and Bruton
issues. In other words, even had the State advised Petitioner of the exculpatory statements made
by his ex-wife and the trial court properly excluded the codefendant’s statements from
consideration, the Petitioner’s self-incriminating statements and the eyewitness testimony would
remain unaffected. Thus, the combined effect of the Bruton violation and alleged Brady errors are
rendered harmless by the strength of the remaining evidence. Thus, the Petitioner’s cumulative
error challenge is denied.
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III. CONCLUSION
Because the Court has considered all of Petitioner’s arguments and found them, on balance,
meritless, the petition is DENIED. At the same time, a certificate of appealability shall issue as
the Petitioner has raised a substantial showing of the denial of a constitutional right – specifically,
the adjudged Bruton violation and, potentially, the alleged Brady violation – as well as the
combination of those issues and procedural irregularities attendant thereto (such as the trial court’s
quashing of the subpoena without making a record and excluding the defense), even though those
denials may well have been harmless error. See 28 U.S.C. § 2253(c)(2). Here, the Court finds
“that reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
As to all grounds other than those related to the Bruton and alleged Brady issues, a
certificate of appealability shall not issue because Petitioner has not made a substantial showing
that he was denied any constitutional rights. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
Dated: November 19, 2021
Central Islip, New York
/s/Gary R. Brown
HON. GARY R. BROWN
UNITED STATES DISTRICT JUDGE
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