Chicherchia v. Griffin

Filing 43

MEMORANDUM-DECISION AND ORDER: ORDERED that the Court adopts the Report and Recommendation (Dkt. No. 41 ) in its entirety. ORDERED that the petition is denied and dismissed. ORDERED that the case is closed. ORDERED that a certificate of appealability shall not be issued. Signed by Senior Judge Norman A. Mordue on 6/29/17. (served on petitioner by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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MICHAEL T. CHICHERCHIA,
Petitioner,
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9:16-CV-1027 (NAM/ATB)

THOMAS GRIFFIN, Superintendent,
Respondent.
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APPEARANCES:

Michael T. Chicherchia 08-B-2650
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
Petitioner, pro se
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Attorney General of the State of New York
Alyson J. Gill, Esq., Assistant New York State Attorney
120 Broadway
New York, New York 10271
Attorney for Respondent

Hon. Norman A. Mordue, Senior U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
BACKGROUND
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On June 25, 2008, an Oneida County Court jury found petitioner guilty of predatory
sexual assault against a child, criminal sexual act in the first degree, and sexual abuse in the first
degree (three counts). On August 8, 2008, Oneida County Judge Michael L. Dwyer rendered
judgment on the verdict. In this habeas corpus proceeding under 28 U.S.C. § 2254 (“section
2254”) petitioner challenges the judgment of conviction on various grounds. Upon referral
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.4, United States Magistrate Judge

Andrew T. Baxter issued a Report and Recommendation (Dkt. No. 41) recommending that the
Court deny and dismiss the petition and deny a certificate of appealability. The Report and
Recommendation sets forth the background of the case, and the Court does not repeat it here.
The Report and Recommendation addresses all of the issues raised in the petition. In his
objection to the Report and Recommendation, petitioner challenges only the conclusion that
Judge Dwyer’s failure sua sponte to order a competency hearing was not objectively
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unreasonable. Petitioner requests a six-month extension of time to obtain mental health records
concerning the pretrial and trial phases of his prosecution. Pursuant to 28 U.S.C. § 636(b)(1)(C),
this Court reviews de novo those parts of a report and recommendation to which a party
specifically objects. The Court reviews for clear error those parts of a report and recommendation
to which no party objects. See Lin v. City of N.Y., 2016 WL 6962536, at *3 (S.D.N.Y. Nov. 28,

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2016).
Petitioner raised the competency issue on his direct appeal to the Appellate Division,
Fourth Department, and argued that the trial court should have ordered a competency hearing. In
affirming, the Fourth Department rejected this contention, stating:

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We reject defendant’s further contention that the court erred in failing sua
sponte to order a competency hearing. The court had the opportunity to
interact with and observe defendant, and thus the court had adequate
opportunity to properly assess defendant’s competency. Moreover, we note
that defense counsel did not request a hearing and, as it has been observed,
defense counsel was in the best position to assess defendant’s capacity and
request an examination pursuant to CPL 730.30.
People v. Chicherchia, 86 A.D.3d 953, 954, 926 N.Y.S.2d 795, 796 (4th Dep’t 2011) (citations,
alterations, and quotation marks omitted), leave to appeal denied, 17 N.Y.3d 952 (2011).
APPLICABLE LAW

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Petitioner’s sole argument in his objection to the Report and Recommendation is that the
trial court committed constitutional error in failing sua sponte to order a hearing on whether he
was competent to stand trial. The Due Process Clause of the Fourteenth Amendment prohibits the
criminal prosecution of a defendant who is not competent to stand trial. See Drope v. Missouri,
420 U.S. 162 (1975). A petitioner is entitled to relief under section 2254 only where the
adjudication of a claim in state court “resulted in a decision that was contrary to, or involved an
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unreasonable application of, clearly established Federal law, as determined 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 in the State court proceeding.” 28 U.S.C. § 2254(d).
The inquiry is whether, in light of what was then known to the trial court, the failure to make
further inquiry into the defendant’s competence to stand trial denied him a fair trial. See Harris v.

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Kuhlmann, 346 F.3d 330, 350 (2d Cir. 2003). The Supreme Court holds that a defendant is
incompetent to proceed if he “lacks the capacity to understand the nature and object of the
proceedings against him, to consult with counsel, and to assist in preparing his defense.” Drope,
420 U.S. at 171. “[S]ince incompetency involves an inability to assist in the preparation of a
defense or rationally to comprehend the nature of the proceedings, failure by trial counsel to
indicate the presence of such difficulties provides substantial evidence of the defendant’s

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competence.” United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986). Similarly, “deference
is owed to the [trial] court’s determinations based on observation of the defendant during the
proceedings.” Id. “[S]ome degree of mental illness cannot be equated with incompetence to
stand trial.” Id. The relevant question is “whether it was objectively unreasonable for the state
trial court to have concluded (and the state appeals court to have agreed) that the circumstances

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did not present a reasonable ground to believe that petitioner was incompetent.” Harris, 346 F.3d
at 356 (italics in original).
DISCUSSION
This Court accepts and adopts Magistrate Judge Baxter’s treatment of petitioner’s claim
that Judge Dwyer committed constitutional error by failing to order a competency hearing. In his
objection, petitioner specifically takes issue with Magistrate Judge Baxter’s observation that the
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mental health records petitioner included as part of his petition were not relevant because they
were from 2009 and 2010 and thus post-date the trial. Petitioner seeks an extension of time to
obtain and submit mental health records from the pretrial and trial phase of his prosecution. He
states that while at Oneida County Jail he was placed in “Residential Crisis” and in an
observation cell because he was suicidal, that at some point after the trial he was placed in Central

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New York Psychiatric Center, and that in November 2009 (more than a year after his the
judgment of conviction) he was transferred from Central New York Psychiatric Center to
“Sullivan ICP” (apparently the Intermediate Care Program at Sullivan Correctional Facility).1
The Court notes that the records petitioner submitted with his petition from 2009 and later state
that prior to incarceration he had no history of mental health services.
Even assuming that petitioner now produced medical records consistent with the

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allegations in his objection, any such records would not assist petitioner because “[i]t is axiomatic
that in reviewing whether this obligation [to order a competency hearing] was properly
discharged, only evidence before the court at the time its decision was made is pertinent.” Harris,

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Although the trial ended in June 2008, petitioner may intend to argue that post-trial events are
relevant as supporting his claim that his mind was “deteriorating” during the trial.

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346 F.3d at 350. In any event, even assuming that petitioner produced, and this Court considered,
medical records consistent with the factual allegations in petitioner’s objection, on this record the
Court would hold that he was not entitled to relief under section 2254. As the facts summarized
in the Report and Recommendation demonstrate, there is ample evidence in the record that
throughout his prosecution, petitioner possessed “the capacity to understand the nature and object
of the proceedings against him, to consult with counsel, and to assist in preparing his defense.”
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Drope, 420 U.S. at 171. He understood the charges and the relevant legal issues. At trial he
testified that he was innocent and that his confession resulted from undue police pressure. He
asserted that the victim and her mother falsely accused him, and he attempted to explain why they
did so. He also challenged a tape recording of an inculpatory telephone conversation with the
victim’s mother. Petitioner’s lawyer did not move for a competency hearing or suggest that he

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was incompetent. Nor did petitioner’s conduct at trial or the communications between petitioner
and Judge Dwyer at trial show that it was objectively unreasonable for Judge Dwyer not to have
ordered a competency hearing. The Court concludes that it was not objectively unreasonable for
Judge Dwyer to have concluded, and the Fourth Department to have agreed, that the
circumstances did not present a reasonable ground to believe that petitioner was incompetent.
Accordingly, this claim lacks merit. Because medical records would not change this result,

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petitioner’s request for an extension of time is denied.
The Court has reviewed Magistrate Judge Baxter’s handling of the other issues in this
proceeding and finds no clear error. The Court adopts the Report and Recommendation in its
entirety. The petition is denied and dismissed. Petitioner has not made a “substantial showing of
the denial of a constitutional right” pursuant to 28 U.S.C. § 2253(c)(2), and a certificate of

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appealability shall not issue.

CONCLUSION
It is therefore
ORDERED that the Court adopts the Report and Recommendation (Dkt. No. 41) in its
entirety; and it is further
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ORDERED that the petition is denied and dismissed; and it is further
ORDERED that the case is closed; and it is further
ORDERED that a certificate of appealability shall not be issued; and it is further
ORDERED that the Clerk of the Court is directed to serve copies of this
Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of

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New York.
IT IS SO ORDERED.
June 29, 2017
Syracuse, New York

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