Cornelius v. Cuomo

Filing 18

OPINION AND ORDER. Petitioner's arguments are without merit. The Court has reviewed the portions of the Report not objected to and finds no clear error. The Petition is accordingly denied and the action is dismissed with prejudice. The Clerk of the Court is respectfully directed to close the case. SO ORDERED. (Signed by Judge Ronnie Abrams on 8/18/2016) (rjm)

USDC-SDNY
DOCUMENT
ELECTRO NI CALLY FILED
DOC#:
DATE FILED: 8118/2016

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

AUSTIN CORNELIUS,
Petitioner,

No. 15-CV-1644 (RA)

v.

OPINION & ORDER

ANDREW CUOMO,
Respondent.

RONNIE ABRAMS, United States District Judge:
Petitioner Austin Cornelius moves prose for a writ of habeas corpus, challenging his June
10, 2010 conviction for second degree burglary. Cornelius contends that the trial court erred in
instructing the jury on the intent required for injury that occurs during a burglary and by failing to
give the jury a separate instruction on self-defense, known in New York as justification. He further
claims ineffective assistance of appellate counsel based on his attorneys' failures to raise this jury
instruction claim on direct appeal. Cornelius also raises a prosecutorial misconduct claim based
on the prosecution's alleged use of perjured testimony, and a Brady claim based on the
prosecution's alleged failure to turn over certain surveillance video. On November 5, 2015,
Magistrate Judge Sarah Netburn issued a Report and Recommendation (the "Report")
recommending that this Court deny the Petition, to which Cornelius objected. For the following
reasons, the Court finds Cornelius's objections unpersuasive and adopts the thorough and wellreasoned Report in its entirety. The Petition is therefore denied.

BACKGROUND
The Court assumes the parties' familiarity with the facts and procedural history underlying
the Petition. Only the facts relevant to Cornelius's objections are set forth below.

I.

Factual Background
At trial, Dario Delacruz, a Duane Reade Loss Prevention Officer, testified that on January

30, 2009 he observed Cornelius on a video surveillance feed in the East 58th Street Duane Reade
store placing disposable cameras into his backpack. Tr. 102-04. 1 Delacruz approached Cornelius
and Cornelius turned over his backpack. Tr. 103. When Delacruz then attempted to handcuff
Cornelius, Cornelius resisted and, according to Delacruz, got "more and more aggressive." Tr.
104. Delacruz testified that he "felt threaten [sic] [Cornelius] was going to attack" so he grabbed
him and tried to pull him down. Tr. 105-06. A physical altercation ensued during which Cornelius
scratched Delacruz and poked him in the eye. Tr. 106-07. Cornelius then ran out of the store,
and, while Delacruz pursued him, Cornelius swung and hit Delacruz with the handcuff that was
still attached to his wrist. Tr. 107. Cornelius was able to evade arrest at that time but he was
arrested several days later. On cross-examination, Delacruz testified that he turned over certain
video surveillance to the police during the investigation, but that not all of the footage was turned
over because, when he made the copy, he and the police officers had been rushed. Tr. 139-40.
Cornelius presented a different version of these events, testifying that that he had not
intended to steal the cameras but to purchase them. Tr. 167-69. He also claimed that Delacruz
and another Duane Reade employee initiated the physical altercation and that he fought back only
to protect himself. Tr. at 162.
At the conclusion of testimony, the trial court instructed the jury on second and third degree
burglary. Cornelius's counsel did not request a justification instruction. During deliberations, the
jury asked to be recharged on second degree burglary, querying whether, "it matter[s] how the
injury during the course of the burglary happened? Is it enough that an injury happened, regardless

1

Tr. refers to the trial transcript, and citations to SR refer to the State Record.

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of who provoked the injury?" Tr. 276-77. Comdius's counsel urged the court to reread the second
degree jury charge and "object[ted] to [the court] giving any answers or any description" in
response to the jury's questions. Tr. 277. The prosecution, in tum, sought for the trial court to
advise the jury that "there's no intent element with regards [sic] to the physical injury in the
burglary charge itself." Tr. at 278. The court ultimately instructed the jury that it "doesn't matter"
who "provoked the injury ... as long as the defendant caused the injury." Tr. 284. Defense
counsel objected to the court's instruction, but still did not request a justification instruction. The
jury came back with a guilty verdict, and Cornelius was sentenced to ten years in prison. Tr. 286;
SR at 13.
II.

Procedural History
On appeal, Cornelius, through his counsel, filed a 62-page brief, which, inter alia, argued

that Cornelius's ten-year sentence was excessive. SR at 1-71. On July 31, 2015 the Appellate
Division affirmed Cornelius's convictions but, finding the sentence excessive, reduced his prison
term to seven years. People v. Cornelius, 89 A.O. 3d 595, 595-96 (1st Dep't 2011). Cornelius's
counsel then sought leave to appeal to the New York Court of Appeals. SR at 190-201. Leave
was granted, but the Court of Appeals ultimately rejected the arguments raised in appellate
counsel's 65-page brief and affirmed Cornelius's conviction. People v. Cornelius, 20 N.Y.3d
1089, 1089 (N.Y. 2013); SR at 208-85.
On July 31, 2015, Cornelius petitioned pro se for a writ of error coram nob is to the
Appellate Division. SR at 392-476. The petition argued that appellate counsel was ineffective in
that they failed to challenge the trial court's failure to give a justification instruction and that the
prosecution's failure to tum over a fourth surveillance video was a Brady violation. Id. The
Appellate Division denied the petition and the Court of Appeals subsequently denied leave to

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appeal. SR at 492, 497. On March 3, 2015, Cornelius filed the instant petition pursuant to 28
U.S.C. §2254. On November 5, 2015, Judge Netburn issued the Report, which recommends that
the Petition be denied. Cornelius filed objections to the Report on December 4, 2015.
ST AND ARD OF REVIEW

A district court reviewing a magistrate judge's report and recommendation "may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge."

28 U.S.C. § 636(b)(l)(C).

"When a timely and specific objection to a report and

recommendation is made, the Court reviews de novo the portion of the report and recommendation
to which the party objects." Razzo!i v. Federal Bureau o/Prisons, No. 12-CV-3774 (LAP), 2014
WL 2440771, at *5 (S.D.N.Y. May 30, 2014); 28 U.S.C. § 636(b)(l). '"To accept those portions
of the report to which no timely objection has been made, however, ·a district corni need only
satisfy itself that there is no clear error on the face of the record.,,. Razzoli, 2014 WL 2440771, at
*5 (quoting Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)). ·'[W]hen a
party makes only conclusory or general objections, or simply reiterates his original arguments, the
Corni reviews the Report and Recommendation only for clear error." Walker v. Vaughan, 216 F.
Supp. 2d 290, 292 (S.D.N.Y. 2002). "This standard of review must be applied while remaining
cognizant of the court's obligation to construe a pro se litigant's submissions liberally in the light
that they raise the strongest possible arguments that they suggest." Ganao v. United States, No.
08-CV-9313 (RO), 2011 WL 924202, at *2 (S.D.N.Y. Mar. 16, 2011).
DISCUSSION

I.

Jury Instruction Claim

Cornelius first objects to the Report's rejection of his justification argument. In New York,
"[a] person is guilty of burglary in the second degree when he knowingly enters or remains

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unlawfully in a building with intent to commit a crime therein, and when [i]n effecting entry or
while in the building or in immediate flight therefrom, he or another participant in the crime"
commits one of four aggravating elements. N.Y. Penal Law§ 140.25. 2 The relevant aggravating
element here is that Cornelius caused "physical injury to any person who is not a participant in the
crime." Id. While Cornelius admits that he caused injury to Delacruz, a non-participant, he asserts
that he did so in self-defense as evidenced by his own testimony and the jury's question on the
scienter requirement for the aggravating element of causing physical injury.

Construing his

Petition liberally, he appears to argue that the trial court erred both in (i) instructing the jury in
response to its note that it "doesn't matter" who "provoked the injury ... as long as the defendant
caused the injury," Tr. 284; and (ii) failing to give a separate instruction on justification. Both
arguments are unavailing.
The trial court correctly instructed the jury on the scienter required for the physical injury
aggravating element.

Under New York law, a defendant who "knowingly enters or remains

unlawfully in a building with intent to commit a crime therein," N.Y. Penal Law § 140.25, is
strictly liable for physically injury that he or another participant caused during that burglary, cf
People v. Vicioso, 116 A.D.3d 1250, 1251 (N.Y. App. Div. 2014) (stating in the robbery context
that "strict liability for an aggravating circumstance attaches to an accomplice, regardless of [his
or her] degree of intent, knowledge or conduct with respect to the aggravating circumstance"). As
the commentary to the New York Penal Code explains,
The causing of "physical injury" is an element of strict liability in
that it matters not what the defendant's mens rea was upon causing
the physical injury. And, the person who suffers the physical injury
need not be the victim of the burglary. Liability attaches once the
2

The four aggravating elements for second degree burglary occur when the defendant "or another participant
in the crime: (a) [i]s armed with explosives or a deadly weapon; or (b) [c]auses physical injury to any person who is
not a participant in the crime; or (c) [u]ses or threatens the immediate use of a dangerous instrument; or (d) [d]isplays
what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm." N.Y. Penal Law§ 140.25.

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physical injury is caused to "any" person who was not a participant
in the burglary.
Donnino, Practice Commentaries, McKinney's Cons. Laws ofN.Y., Book 39, Penal Law§ 140.00.
Contrary to Cornelius's argument, a defendant is thus guilty of second degree burglary when a
non-participant is physically injured irrespective of whether the burglary participant caused the
injury on purpose, by accident, or in self-defense. The trial court's instruction in response to the
jury note was an accurate one.
For similar reasons, there was no basis for a separate justification instruction. Because
Cornelius was strictly liable for any physical injuries he caused to Delacruz, the jury could not
excuse his conduct even if it was in self-defense. In any event, the Court's failure to give a separate
justification instruction was not error because "a trial court is not obligated to instruct a jury that
justification is a defense to burglary." Jennis v. McCray, No. 03-CV-702 (NAM) (RFT), 2006
WL 2792737, at *4 (N.D.N.Y. Sept. 17, 2006) (citing People v. Santiago, 166 A.D.2d 362 (N.Y.
App. Div. 1990); People v. Bess, 107 A.D.2d 844, 846 (N.Y. App. Div. 1985)).
As Cornelius's arguments on self-defense are unpersuasive, his objection is rejected.
II.

Ineffective Assistance of Appellate Counsel Claim

Cornelius next objects to the Report's rejection of his ineffective assistance of counsel
claim, arguing that his attorneys' failure to raise this jury instruction claim on appeal proves that
they were inadequate. Consistent with the Report's conclusion, however, appellate counsel '"need
not (and should not) raise every nonfrivolous claim, but rather may select from among them in
order to maximize the likelihood of success on appeal."' Chrysler v. Guiney, 806 F.3d 104, 118
(2d Cir. 2015) (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)). Given that Cornelius's
alleged justification for physically injuring Delacruz did not constitute a defense to his conviction
for second degree burglary, there was neither inadequate performance nor prejudice under "the
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well-known two-part test of Strickland v. Washington, 466 U.S. 668 (1984)."

Woodard v.

Chappius, 63 l F. App'x 65, 66 (2d Cir. 2016). Indeed, the record here suggests that Cornelius's
attorneys provided him with effective counsel on appeal, among other things, successfully arguing
for a reduction of sentence. The Court thus adopts the Report's recommendation that "[t]he
Appellate Division's denial of Cornelius's ineffective assistance claim was not an unreasonable
application of Strickland." Report at 9.
III.

Prosecutorial Misconduct and Brady Claims
The Court also agrees with the Report's finding that, because the prosecutorial misconduct

claim was raised for the first time in his Petition, it is barred by procedural default from habeas
review on the facts here. With respect to Cornelius's Brady claim, even ifthe Court were to assume
that it was properly raised in his Petition, there is no evidence in the record to establish that the
prosecution was in possession of the video, nor even aware, prior to the trial, that Delacruz had
not turned over all of the footage to the police. There is also nothing in the record to support
Cornelius's claim that the footage would be exculpatory.

Cornelius's speculation that the

"prosecutor must have inquired" about the footage, and that it "could have been used to show" that
he did not conceal merchandise, Obj. 4-5, are insufficient to raise a Brady claim, see Mallet v.

Miller, 432 F. Supp. 2d 366, 377 (S.D.N.Y. 2006) ("It is well established that the mere speculation
that exculpatory evidence was withheld is insufficient to warrant habeas relief.").

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CONCLUSION
Petitioner's arguments are without merit. The Court has reviewed the portions of the
Report not objected to and finds no clear error. The Petition is accordingly denied and the action
is dismissed with prejudice. The Clerk of the Court is respectfully directed to close the case.
SO ORDERED.
Dated:

August 18, 2016
New York, New York

United States District Judge

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