Wood v. Maccarone

Filing 16

DECISION AND ORDER denying petitioners request for writ of habeas corpus and dismissing the petition (doc. 1). Because petitioner has not made a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), the Court decli nes to issue a certificate of appealability. The Clerk of the Court is directed to close this case. Signed by Hon. Michael A. Telesca on 7/18/17. (Copy of Decision and Order sent by first class mail to Petitioner.)(JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SCOTT M. WOOD,
Petitioner,

No. 6:14-CV-06639 (MAT)
DECISION AND ORDER

-vsROBERT M. MACCARONE, Chairman and
Director of Probation,
Respondent.

I.

Introduction
Scott M. Wood (“petitioner”), proceeding pro se, petitions

this Court for a writ of habeas corpus pursuant to 28 U.S.C.
§

2254.

Petitioner

was

convicted

by

a

jury

of

misdemeanor

aggravated driving while intoxicated (N.Y. Veh. and Traff. Law
[“VTL”] § 1192(2-a)) and driving while intoxicated (VTL § 1192(3)).
Petitioner’s judgment of conviction originated from the New York
State Town Court, Town of York (Purtell, J.). Petitioner was
sentenced to a term of three years probation1 and a fine of $1,500,
along with an ignition interlock requirement.
II.

Factual Background and Procedural History
Petitioner filed a direct pro se appeal to Livingston County

Court, which reserved judgment pending remission to Town Court for
a hearing to determine whether the sheriff’s deputy exceeded the
allowable level of Fourth Amendment intrusion pursuant to People v.
DeBour, 40 N.Y.2d 210 (1976). After the Town Court found that the

1

It appears from the record that petitioner’s probation expired on October
7, 2016.

deputy’s actions were lawful, County Court affirmed petitioner’s
judgment of conviction on July 31, 2013.
In the decision and order affirming petitioner’s conviction,
County Court (Wiggins, J.) specifically rejected petitioner’s legal
sufficiency claim as unpreserved. Alternatively, the court found
the claim meritless because the evidence was sufficient to allow
the jury to infer from the circumstances that petitioner, who was
found seated in the driver’s seat of a running vehicle with the
vehicle’s lights on, intended to drive the vehicle. The court also
rejected petitioner’s prosecutorial misconduct claim, finding that
(1)

although

the

prosecutor

arguably

committed

prosecutorial

misconduct in the opening statement when he implied that petitioner
could “operate” the vehicle just by sitting in the vehicle and with
no accompanying evidence of intent, the trial court corrected the
error by advising the jury that nothing said in opening statement
was evidence and by issuing a curative instruction from the pattern
criminal

jury

instructions

(“CJI”);

and

(2)

the

prosecutor’s

alleged misconduct on summation constituted fair comment on the
evidence. Finally, the court found that the trial court did not err
in denying petitioner’s request to deviate from the standard CJI
definition of the element of operation.
The

instant

petition

alleges

four

grounds,

arguing

that

(1) petitioner’s arrest was the product of an illegal search and
seizure; (2) the evidence was legally insufficient to support his
conviction; (3) the prosecutor committed misconduct in the opening
and closing statements; and (4) the trial court erred in submitting
2

its instructions to the jury, refusing to allow a video to be
played by defense counsel, and “barr[ing]” counsel from objecting
to the prosecutor’s summation.
III. Standard of Review
The Anti–Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies to this petition. AEDPA “revised the conditions
under which federal courts may grant habeas relief to a person in
state custody.” Kruelski v. Connecticut Super. Ct. for Judicial
Dist.

of

Danbury,

316

F.3d

103,

106

(2d

Cir.

2003)

(citing

28 U.S.C. § 2254). Under AEDPA, a federal court may grant a writ of
habeas corpus under 28 U.S.C. § 2254 only if the state court’s
adjudication of the petitioner’s claim on the merits is “contrary
to, or involved an unreasonable application of, clearly established
Federal
United

law,

as

States,”

determined
28

U.S.C.

by
§

the

Supreme

2254(d)(1),

Court

or

of

involved

the
an

“unreasonable determination of the facts” in light of the evidence
presented. 28 U.S.C. § 2254(d)(2).
IV. Grounds Asserted in the Petition
A.

Fourth Amendment Claim (Ground One)

Petitioner’s Fourth Amendment claim is barred from habeas
review by Stone v. Powell, 428 U.S. 465 (1976). “Where the State
has provided an opportunity for full and fair litigation of a
Fourth Amendment claim, a state prisoner may not be granted habeas
corpus

relief

on

the

ground

that

evidence

obtained

in

an

unconstitutional search or seizure was introduced at his trial.”
3

Id. at 494 (footnotes omitted). The Second Circuit has noted that
Stone requires only that “the state have provided the opportunity
to the state prisoner for full and fair litigation of the Fourth
Amendment claim.” Gates v. Henderson, 568 F.2d 830, 839 (2d Cir.
1977) (en banc), cert. denied, 434 U.S. 1038 (1978). A federal
court may undertake habeas review only in one of two instances:
(1) “if the state provides no corrective procedures at all to
redress Fourth Amendment violations,” or (2) if “the state provides
the process but in fact the defendant is precluded from utilizing
it by reason of an unconscionable breakdown in that process. . . .”
Id. at 840.
A

petitioner

receives

a

“full

and

fair

opportunity”

to

litigate his Fourth Amendment claim where the state provides a
“‘statutory mechanism’ for suppression of evidence tainted by an
unlawful search and seizure.” McPhail v. Warden, Attica Corr.
Facility, 707 F.2d 67, 69 (2d Cir. 1983). New York State affords
defendants the requisite corrective procedures. See CPL § 710.10 et
seq.; see also u v. Riley, 975 F.2d 67, 70 n.1 (2d Cir. 1992)
(noting that “federal courts have approved New York's procedure for
litigating Fourth Amendment claims, embodied in N.Y. Crim. Proc.
Law § 710.10 et seq., as being facially adequate”) (internal
citation and quotation marks omitted).
Stone bars petitioner’s claim that his arrest was unsupported
by probable cause (see Edwards v. Phillips, 2007 WL 1834828, *4
(S.D.N.Y. June 26, 2007)). Here, petitioner was provided with the
4

opportunity to fully and fairly adjudicate his Fourth Amendment
claims in state court, which County Court ensured by remitting
petitioner’s case for a suppression hearing on his Fourth Amendment
claim

prior

to

ruling

on

petitioner’s

appeal.

Accordingly,

petitioner’s Fourth Amendment claim in this proceeding is barred by
Stone.
Moreover,
“unconscionable

petitioner
breakdown”

has

not

occurred

demonstrated
in

state

that

an

court.

“[U]nconscionable breakdown in the state’s process must be one that
calls into serious question whether a conviction is obtained
pursuant to those fundamental notions of due process that are at
the heart of a civilized society.” Cappiello v. Hoke, 698 F. Supp.
1042, 1050 (E.D.N.Y. 1988), aff’d, 852 F.2d 59 (2d Cir. 1988) (per
curiam); accord, Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992)
(observing that some sort of “disruption or obstruction of a state
proceeding” of an egregious nature, e.g., the bribing of a trial
judge, typifies an unconscionable breakdown). No such breakdown is
discernable from the record. Even if the state court erroneously
decided the issue, which it did not, a petitioner cannot gain
federal review of a Fourth Amendment claim simply because a federal
court may reach a different result. See Capellan, 975 F.2d at 71.
This Court is thus precluded from considering petitioner’s Fourth
Amendment claim, and the claims is dismissed.

5

B.

Legal Sufficiency (Ground Two)

Petitioner

contends

that

his

judgment

of

conviction

is

unsupported by legally sufficient evidence. As noted above, County
Court

explicitly

rejected

this

argument

as

unpreserved.

Accordingly, this claim is barred by an adequate and independent
state law ground, and is therefore dismissed. See Anderson v.
Griffen, 2012 WL 5227297, *2 (W.D.N.Y. Oct. 22, 2012) (citing Baker
v. Kirkpatrick, 768 F. Supp. 2d 493, 500 (W.D.N.Y. 2011) (holding
that

Appellate

Division’s

dismissal

of

insufficiency-of-the-evidence claim as unpreserved was an adequate
and independent state ground); Garcia v. Lewis, 188 F.3d 71, 79-82
(2d Cir. 1999) (recognizing that New York has a well-established
preservation

rule

that

is

regularly

followed

in

a

number

of

contexts)).
C.

Prosecutorial Misconduct (Ground Three)

County Court’s finding that the prosecutor did not commit
misconduct in either the opening or closing statements was not
contrary

to,

nor

an

unreasonable

application

of,

relevant

precedent. Initially, the court notes that “[h]abeas review of
prosecutorial misconduct claims is narrowly circumscribed. More
than ‘mere trial error’ is required to grant relief.” Tucker v.
Bennett, 219 F. Supp. 2d 260, 268 (E.D.N.Y. 2002) (quoting Tankleff
v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998)). According to
relevant Supreme Court precedent, any evaluation of prejudicial
error resulting from inappropriate prosecutorial comments must be
6

assessed in the context of the trial as a whole. See United States
v. Young, 470 U.S. 1, 11–12 (1985). In making this evaluation, the
Second

Circuit

has

generally

focused

on

three

factors:

“the

severity of the misconduct, the measures adopted to cure the
misconduct, and the certainty of conviction absent the misconduct.”
United States v. Elias, 285 F.3d 183, 190 (2d Cir. 2002).
First, County Court correctly found that the trial court’s
curative instruction to the jury, which advised it accurately on
New

York

law

pursuant

to

the

CJI,

sufficiently

removed

any

prejudice stemming from the prosecutor’s opening statement. As
respondent notes, this CJI instruction on operation has been
explicitly approved by the New York State Supreme Court, Appellate
Division, Fourth Department. See People v. Dunning, 305 A.D.2d 1074
(4th Dep’t 2003). Second, County Court appropriately found that the
prosecutor’s remarks on summation, in which petitioner argues that
the prosecutor “went outside the bounds of evidence,” constituted
fair comment. This is especially true considering the otherwise
overwhelming evidence of guilt presented against petitioner. See,
e.g., Fomby v. Artus, 2016 WL 5468095, *3-4 (W.D.N.Y. Sept. 29,
2016). Accordingly, petitioner’s claim of prosecutorial misconduct
is dismissed.
D.

Alleged Trial Court Errors (Grounds Three and Four)

Petitioner

contends

that

the

trial

court

erred

in

(1) submitting instructions to the jury, (2) refusing to allow a
video to be played by defense counsel, and (3) “barr[ing]” counsel
7

from objecting to the prosecutor’s summation. Petitioner’s first
claim, that the trial court erred in its presentation of jury
instructions, is not cognizable on habeas review, because it does
not

“reach[]

constitutional

magnitude,”

but

rather

revolves

entirely around the operation element of DWI as established by
New York law. Cordoba v. Harris, 473 F. Supp. 632, 634 (S.D.N.Y.),
aff’d, 614 F.2d 1286 (2d Cir. 1979) (citing, inter alia, Cupp v.
Naughten, 414 U.S. 141, 147 (1973)).
Petitioner’s contention that the trial court refused to allow
him to play portions of a police dashboard camera video to the jury
is meritless. Accordingly, County Court’s summary rejection of that
contention

on

direct

appeal

was

not

contrary

to,

nor

an

unreasonable application of, relevant federal precedent. The record
reveals that the entire dashboard camera video was published to the
jury as evidence. It is unclear from the record whether the
entirety of the video was played during the course of the trial;
however, it is clear from the transcript that petitioner received
a full and fair opportunity to both cross-examine the police
officer and to point to portions of the video he deemed relevant,
either

through

cross-examination

or

on

summation.

Thus,

no

prejudice stemmed from this alleged error. Similarly, considering
the overwhelming evidence against petitioner, the trial court’s
admonishment to petitioner that he was not to object to the
prosecutor’s summation, while error, was harmless. See, e.g.,
Bryant v. Artus, 2012 WL 5288771, *10 (W.D.N.Y. Oct. 23, 2012)

8

(noting that, even in the presence of error, petitioner is “still
required to make a showing of prejudice in order to obtain habeas
relief”). Accordingly, petitioner’s claims that the trial court
errors denied him due process are dismissed.
V. Conclusion
For the foregoing reasons, petitioner’s request for writ of
habeas corpus is denied and the petition (doc. 1) is dismissed.
Because petitioner has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
Court declines to issue a certificate of appealability. The Clerk
of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

July 18, 2017
Rochester, New York.

9