Bernard v. Chappius

Filing 14

DECISION AND ORDER denying and dismissing 1 Petition for Writ of Habeas Corpus filed by Gregory Bernard. Signed by Hon. Michael A. Telesca on 11/21/2017. (CDH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

GREGORY BERNARD,
Petitioner,
No. 15-CV-6537(MAT)
DECISION AND ORDER

-vsPAUL CHAPPIUS, JR.,
Respondent.

I.

Introduction
Pro se petitioner Gregory Bernard(“petitioner” or “Bernard”)

seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the
basis that he is being unconstitutionally detained in respondent
Paul

Chappius,

Jr.’s

(“respondent”)

custody.

Petitioner

is

incarcerated pursuant to judgments of conviction entered against
him on May 29, 2008 and September 25, 2008, in Monroe County Court
of New York State (“Monroe County Court” or the “trial court”),
following jury verdicts convicting him of murder in the second
degree and criminal possession of a weapon in the second degree.
Petitioner was sentenced to a determinate prison term of 12½ years
on the weapon possession count, and a concurrent indeterminate
prison term of 25 years to life on the murder count.
In

the

petition,

petitioner

asserts

that

his

continued

incarceration is unconstitutional because: (1) the prosecution
violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to
timely disclose certain grand jury testimony; and (2) the trial

court denied him due process by failing to sua sponte reopen its
pre-trial hearing on the admissibility of certain identification
evidence following the disclosure of the grand jury testimony. For
the reasons discussed below, the Court finds that petitioner has
not shown he is entitled to federal habeas relief.
II.

Factual Background and Procedural History
A.

The Underlying Crime and Investigation

Petitioner’s convictions arise out of the shooting death of
Raymundo Rodriguez on September 9, 2007.

In September 2007,

petitioner was involved in selling heroin and cocaine from Cynthia
Bashaw’s backyard on Clifford Avenue in Rochester.

Ms. Bashaw

testified at petitioner’s first trial1 that petitioner would obtain
the drugs from Steven Rivera, who was known to her as “Crown,” and
from a second individual known to her as “Josh.”

Ms. Bashaw

further testified that she permitted petitioner, Mr. Rivera, and
“Josh” to store drugs and three handguns in her bedroom dresser.
In the early morning of September 9, 2007, Ms. Bashaw was in
bed when she heard a lot of noise coming from outside.

She

subsequently discovered petitioner, Mr. Rivera, and “Josh” in her
driveway.

Ms. Bashaw let “Josh” into her apartment, whereupon he

removed something from her dresser and then left.

After his

1

As discussed further below, petitioner’s first trial resulted in a
conviction on the weapon possession charge, but the jury was unable to reach a
verdict on the murder count. Petitioner was convicted of second-degree murder
after a second jury trial.

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departure, Ms. Bashaw noticed that the three handguns, which she
had seen earlier that day, were missing from her dresser.
Also in the early morning of September 9, 2007, Josue Torres
left a hip-hop club in Rochester and drove to an after-hours party
at a house on Roycroft Drive.

Mr. Torres testified that after

attending the party for 15 to 20 minutes, he exited the house and
spoke to Mr. Rivera, whom he had known since childhood. Mr. Torres
further testified that Mr. Rivera then went over to a group of four
men standing nearby and that he witnessed handguns being passed
around before hearing one of the men say “let’s bust him,” which
Mr. Torres understood to mean they intended to shoot someone.
Mr. Torres walked away, he heard a shot.

As.

He looked back and saw

petitioner, Mr. Rivera, and a third man shooting at Mr. Rodriguez.
Mr. Torres testified that he heard one of the men say “this is for
my cousin, this is for my cousin” as they shot at Mr. Rodriguez.
Mr. Torres hid behind his truck, and the three shooters ran away,
passing by him.

Mr. Rodriguez died at the scene of multiple

gunshot wounds.
At approximately 3:30 a.m. on September 9, 2007, Rochester
Police Department (“RPD”) Officers Korey McNees and Nicholas Gulla
responded to the scene on Roycroft Drive. Officer McNees testified
that Mr. Rodriguez’s body was lying on the ground along with shell
casings and projectiles.

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Ms. Bashaw testified that sometime after 4:00 a.m. that same
day, she was awoken when Mr. Rivera’s truck pulled into her
driveway playing loud music.

Ms. Bashaw saw petitioner, Mr.

Rivera, “Josh,” and a fourth individual known to her as “Punto.”
“Josh”

entered

her

bedroom

and

then

left

again.

After

his

departure, Ms. Bashaw looked in her dresser and saw two guns.

Ms.

Bashaw further testified that later that day, she and petitioner
were in her backyard and petitioner told her that he had shot an
individual named “Ray-Ray” at an after-hours party and that he was
going to get away with it.
Mr. Torres was interviewed by the RPD the day after the
shooting.

He told the RPD that Mr. Rivera was one of the shooters

and provided physical descriptions of the other two shooters.
On September 27, 2007, RDP Officer Myron Moses executed a
search warrant for Ms. Bashaw’s apartment. Officer Moses recovered
two handguns from her dresser, along with a .22 caliber live round
and a quantity of suspected cocaine, heroin, and ecstasy pills.
On September 28, 2007, the RPD presented a photographic array
to Mr. Torres and Mr. Torres identified petitioner as one of the
shooters. The details of this identification are discussed further
below.
On

October

11,

2007,

Investigator Gary Galetta.

petitioner

was

interviewed

by

RPD

Petitioner was given his Miranda

warnings and agreed to speak to Investigator Galetta.

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Petitioner

told investigator Galetta that he sold drugs on Clifford Avenue for
Mr. Rivera.

Petitioner further stated that he had been at the

after-hours party where Mr. Rodriguez was killed, but claimed that
he gave his handgun to Josh and that Josh and Mr. Rivera were the
ones who fired at Mr. Rodriguez.

Petitioner then traveled to

Clifford Avenue in Mr. Rivera’s vehicle.

Later in the same

interview, petitioner changed his story, and claimed that the
shooters were actually individuals known to him as “Willie B” and
“Collie Bling.”
Ballistics

analysis

was

performed

recovered from Ms. Bashaw’s apartment.

on

the

two

handguns

This analysis showed that

two .40 caliber shell casings and a projectile found at the scene
of Mr. Rodriguez’s shooting were fired from a semi-automatic pistol
recovered from Ms. Bashaw’s apartment.

Additionally, two .38

caliber projectiles or bullets recovered at the shooting scene were
fired from the revolver recovered from Ms. Bashaw’s apartment.
Police also recovered a .45 caliber shell casing from the shooting
scene, which was not fired from either of the guns recovered from
Ms. Bashaw’s apartment.
B.

Pre-trial Proceedings

Prior

to

petitioner’s

first

trial,

suppress Mr. Torres’ identification of him.

petitioner

moved

to

The trial court held

a hearing pursuant to United States v. Wade, 388 U.S. 218 (1967),
to determine whether the identification procedure by which Mr.

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Torres identified petitioner as one of the shooters (namely, the
photographic array) was unduly suggestive.

At the Wade hearing,

RPD Sergeant Mark Mariano testified that, on September 28, 2007, he
showed a photograph array to Mr. Torres2 and that Mr. Torres
identified

petitioner,

stating

“he

is

one

of

the

shooters.”

Investigator Galetta then wrote “he was one of the shooters” next
to petitioner’s picture.
On April 11, 2008, the trial court denied petitioner’s motion
to suppress, finding that the photographic array was fair and not
unduly suggestive and that the police did not engage in suggestive
conduct.
After the Wade hearing, but before the commencement of trial,
the prosecution disclosed to petitioner a transcript of Mr. Torres’
grand jury testimony.

Before the grand jury, Mr. Torres testified

that, when he identified petitioner from the photographic array, he
told the police that he “wasn’t sure” about the identification.
Defense counsel subsequently moved to dismiss the indictment on the
basis that the evidence presented was legally insufficient or, in
the alternative, to preclude Mr. Torres from identifying petitioner
at trial.
Wade

Defense counsel did not, however, move to reopen the

hearing or request an adjournment.

The people opposed

petitioner’s motion, arguing that it was based on a selective
2

At the time of the Wade hearing, Mr. Torres had not been identified as the
witness, and Sergeant Mariano therefore referred to him as an unnamed witness.
For clarity, the Court refers to him by name.

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reading of Mr. Torres’ grand jury testimony.

The trial court

denied petitioner’s request to dismiss the indictment and stated
that it would wait until the appropriate time at trial to address
any other objections.
C.

Petitioner’s First Trial and Sentencing

Petitioner’s first trial commenced on April 21, 2008.

During

the course of trial, defense counsel moved to suppress Mr. Torres’
identification of petitioner, and the Court denied that request.
The jury found petitioner guilty of criminal possession of a weapon
in the second degree, but was unable to reach a verdict on the
charge of murder in the second degree.
partial verdict.

The trial court accepted a

On May 29, 2008, petitioner was sentenced to 12½

years on the weapon possession count.
D.

Petitioner’s Second Trial and Sentencing

Petitioner’s second trial commenced on September 8, 2008.

At

no time prior to commencement of his second trial did petitioner
move to reopen the Wade hearing.

The jury at petitioner’s second

trial found him guilty of murder in second degree.

On September

25, 2008, petitioner was sentenced to 25 years to life with respect
to the murder conviction, to run concurrently with his sentence on
the weapon possession conviction.
E.

Direct Appeal

Petitioner

took

a

consolidated

direct

appeal

of

both

convictions, arguing in relevant part that (1) the prosecution
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failed to timely disclose exculpatory evidence, in violation of
Brady and (2) the trial court erred in failing to reopen the Wade
hearing based upon Mr. Torres’ belatedly disclosed grand jury
testimony.

The

Appellate

Division,

Fourth

Department

(the

“Appellate Division”) entered two decisions on March 21, 2014
affirming petitioner’s judgments of conviction.

The Appellate

Division found that the prosecution did in fact fail to timely
disclose Brady material.

However, the Appellate Division further

concluded that the belated disclosure did not warrant reversal of
petitioner’s

conviction

because

he

was

afforded

a

meaningful

opportunity to make use of the information on cross-examination and
because there was “no reasonable probability that, had the evidence
been disclosed to [petitioner] prior to the Wade hearing, the
result of the [hear]ing would have been different.”

People v.

Bernard, 115 A.D.3d 1214, 1215 (2014) (internal quotation omitted).
With respect to petitioner’s argument that the trial court should
have reopened the Wade hearing based on the belated disclosure, the
Appellate Division found that this argument was unpreserved.

Id.

Petitioner sought leave to appeal to the New York Court of
Appeals (the “Court of Appeals”) with respect to all the claims he
raised before the Appellate Division.
his request on June 12, 2014.

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The Court of Appeals denied

F.

The Instant Petition

Petitioner commenced this action on September 10, 2015.
Petitioner contends that he is entitled to habeas relief because
(1) the prosecution violated Brady by failing to timely disclose
Mr. Torres’ grand jury testimony and (2) the trial court denied him
due process by failing to sua sponte reopen the Wade hearing in
light of that delayed disclosure.
III. Discussion
A.

Standard of Review

“Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2254(d)(1), a federal court may not grant
a

state

prisoner’s

habeas

application

unless

the

relevant

state-court decision was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States.”

Knowles v. Mirzayance,

556 U.S. 111, 121 (2009) (internal quotation omitted).

“The

question is ‘not whether the state court was incorrect or erroneous
in rejecting petitioner’s claim, but whether it was objectively
unreasonable in doing so.’”

Edwards v. Superintendent, Southport

C.F., 991 F. Supp. 2d 348, 367 (E.D.N.Y. 2013) (quoting Ryan v.
Miller, 303 F.3d 231, 245 (2d Cir. 2002)).

“The petition may be

granted only if ‘there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the

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Supreme] Court’s precedents.’” Id. (quoting Harrington v. Richter,
562 U.S. 86, 102 (2011)).
B.

The Prosecution’s Belated Disclosure of Brady Material

Petitioner’s

first

argument

is

that

his

conviction

was

unconstitutionally obtained because the prosecution failed to
timely disclose Brady material - namely, Mr. Torres’ grand jury
testimony.
“The prosecution's Brady obligation is well-known: [t]o the
extent that [a] prosecutor knows of material evidence favorable to
the defendant in a criminal prosecution, the government has a due
process obligation [grounded in the 14th Amendment] to disclose
that evidence to the defendant.”

DiSimone v. Phillips, 461 F.3d

181, 192 (2d Cir. 2006) (internal quotation omitted).

The Supreme

Court has identified “‘three components of a true Brady violation’
. . . ‘[t]he 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.’”

Id. (quoting

Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). “[E]ven where
there has been a Brady violation, a defendant is not entitled to
reversal unless he can show that the delayed disclosure caused him
prejudice.”

United States v. Diaz, 922 F.2d 998, 1007 (2d Cir.

1990).

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In this case, the Appellate Division found that there had been
a Brady violation but that reversal was not warranted because
petitioner had failed to demonstrate any prejudice.

The Appellate

Division’s

to,

determination

was

neither

contrary

nor

an

unreasonable application of, established federal law. As set forth
above,

where

the

prosecution

fails

to

timely

disclose

Brady

material, reversal is warranted only where prejudice has ensued.
No prejudice has been demonstrated in this case. Mr. Torres’ grand
jury testimony was disclosed prior to trial, and defense counsel
made use of it during cross-examination.

Indeed, Mr. Torres

acknowledged on cross-examination that he had told the grand jury
that he wasn’t sure during the photographic array if petitioner was
one of the shooters, though he explained on redirect that he had
hesitated in his identification of petitioner based on fear, and
not on any true doubt about petitioner’s identity.
late-disclosed

Brady

evidence

on

cross-examination

The use of
is

strong

evidence that no prejudice occurred. See, e.g., Gardner v. Fisher,
556 F. Supp. 2d 183, 195 (E.D.N.Y. 2008) (“The defense was not
prejudiced by learning at the last minute [of an exculpatory
statement], since the defense made effective use of this statement
at trial through extensive cross-examinations. . . . This is an
adequate remedy for late Brady disclosure.”); see also U.S. v.
Coppa,

267

F.3d

132,

142

(2d.

Cir.

2001)

(“[W]e

have

never

interpreted due process of law as requiring more than that Brady

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material must be disclosed in time for its effective use at trial”)
(internal citations omitted).
Moreover, the Court agrees with the Appellate Division that
there

is

no

reasonable

probability

that

the

outcome

of

the

Wade hearing would have been different had the Brady material been
timely disclosed.

As respondent correctly argues, the primary

purpose of a Wade hearing is to investigate whether the procedures
used by the police were unduly suggestive. “The ultimate questions
[decided at a Wade hearing] are whether the pretrial proceedings
have been conducted in a manner that was unnecessarily suggestive
and whether, in all the circumstances, there is a very substantial
likelihood of irreparable misidentification.”

United States v.

Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990).

Accordingly,

the court must perform a “a one-step or two-step inquiry. The first
question is whether the pretrial identification procedures were
unduly suggestive of the suspect’s guilt. If they were not, the
trial identification testimony is generally admissible without
further

inquiry

identification.”

into

the

reliability

of

the

pretrial

Id. (emphasis added).

Here, the trial court concluded that the procedures used by
the

police

suggestive.

(namely,

the

photographic

array)

were

not

unduly

Petitioner has not identified any evidence that would

reasonably call that conclusion into question - indeed, Mr. Torres’
grand jury testimony related to his own certainty about the

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identification, not to any conduct by the police.

Under these

circumstances, Mr. Torres’ certainty (or lack thereof) regarding
his

identification

of

petitioner

simply

was

not

relevant

to

admissibility, which is what a pre-trial Wade hearing is used to
ascertain. Questions regarding the weight to be given a particular
identification are, of course, left to the jury, and in this case,
the jury was fully aware of Mr. Torres’ grand jury testimony.

The

Court therefore agrees with the Appellate Division’s rejection of
petitioner’s argument and finds that it was neither contrary to,
nor an unreasonable application of, established federal law.
C.

The Trial Court’s Failure to Sua Sponte Reopen the Wade
Hearing

Petitioner’s second and final argument is that the trial court
denied him due process by failing to sua sponte reopen the Wade
hearing based on the prosecution’s delayed disclosure of Mr.
Torres’ grand jury testimony.

As set forth above, the Appellate

Division denied this claim on the basis that it was unpreserved.
1.

Procedural Bar

As a threshold matter, respondent argues that this claim is
procedurally barred on two separate bases.

First, respondent

contends that petitioner failed to properly exhaust his claim in
the state courts, and that he is now prevented from doing so.
Second, respondent contends that petitioner’s claim was denied on

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adequate and independent state law grounds.

The Court agrees with

respondent with respect to each of these arguments.
a.

Failure to Exhaust

It is well-established that a state inmate who seeks federal
habeas

review

remedies.

must

first

exhaust

28 U.S.C. § 2254(b)(1).

his

available

state

court

This is so because “interests

of comity and federalism dictate that state courts must have the
first opportunity to decide a petitioner’s claims.”
Weber, 544 U.S. 269, 273 (2005).

Rhines v.

“In order to satisfy the

exhaustion requirement, a habeas petitioner must give the state
courts a fair opportunity to review the federal claim and correct
any alleged error.”

Ortiz v. Heath, 2011 WL 1331509, at *6

(E.D.N.Y. Apr. 6, 2011).
Additionally,

“[i]n

order

to

satisfy

the

exhaustion

requirement, a prisoner must have fairly presented the same legal
claim to the state courts that he presents in his federal habeas
petition. Because non-constitutional claims are not cognizable in
federal habeas corpus proceedings, . . . [the petitioner] must put
state

courts

on

notice

that

they

are

to

decide

federal

constitutional claims.” Petrucelli v. Coombe, 735 F.2d 684, 687 (2d
Cir. 1984).

“[A] state prisoner does not ‘fairly present’ a claim

to a state court if that court must read beyond a petition or a
brief (or a similar document) that does not alert it to the
presence of a federal claim in order to find material, such as a
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lower court opinion in the case, that does so.”

Baldwin v. Reese,

541 U.S. 27, 32 (2004).
A claim may be deemed exhausted where further review is
procedurally barred under state law.

See Ortiz, 2011 WL 1331509,

at *6 (“[B]ecause the exhaustion requirement ‘refers only to
remedies still available at the time of the federal petition, it is
[also deemed] satisfied if it is clear that the habeas petitioner's
claims are now procedurally barred under state law.’”) (quoting
Coleman v. Netherland, 518 U.S. 152, 161 (1996)).

However,

“[w]here a procedural bar gives rise to exhaustion . . . it also
‘provides an independent and adequate state-law ground for the
conviction and sentence, and thus prevents federal habeas corpus
review of the defaulted claim.’” Id. (quoting Netherland, 518 U.S.
at 162).

“For a procedurally defaulted claim to escape this fate,

the petitioner must show cause for the default and prejudice, or
demonstrate that failure to consider the claim will result in a
miscarriage

of

justice,

(i.e.,

the

petitioner

is

actually

innocent).”

Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).

In this case, respondent contends that petitioner failed to
exhaust his claim because he did not cast it in constitutional
terms when he raised it before the Appellate Division.
agrees.

The Court

Petitioner’s brief in the Appellate Division specifically

addressed

this

Procedure

Law

argument
§

as

710.40(4),

arising

under

which

requires

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New

York

that

a

Criminal
pretrial

determination be revisited where additional pertinent facts are
discovered

by

the

defendant.

In

support

of

this

argument,

petitioner cited only state law cases, and did not argue that the
trial court’s failure to reopen the hearing constituted a due
process violation. Under these circumstances, petitioner cannot be
said to have “fairly presented” his constitutional claim to the
state court.

Accordingly, the Court finds that petitioner failed

to exhaust his claim that the trial court violated his right to due
process by not sua sponte reopening the Wade hearing.

Moreover,

because

issue

petitioner

clearly

could

have

raised

this

in

constitutional terms on direct appeal but did not do so, he is
barred by New York law from seeking collateral review. See Ramirez
v. Attorney General, 280 F.3d 87, 96 (2d Cir. 2001) (claims not
“fairly presented” on direct appeal are procedurally barred in the
state courts).

As such, petitioner’s claim is barred from federal

habeas review, unless he can show either cause and prejudice, or
actual innocence.
b.

Independent and Adequate State Law Grounds

Respondent also argues that petitioner’s claim is barred
because it was denied by the Appellate Division on independent and
adequate state law grounds.

Again, the Court agrees.

“The independent and adequate state ground doctrine first
arose in the context of direct appeals to the Supreme Court from
final judgments of the state courts. Under that doctrine the

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Supreme Court ‘will not review a question of federal law decided by
a state court if the decision of that court rests on a state law
ground that is independent of the federal question and adequate to
support the judgment.'"

Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir.

1999) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)).
"The doctrine also applies in the context of federal courts
reviewing applications for a writ of habeas corpus" and "applies
whether the state law ground is substantive or procedural."
(internal quotation omitted).

Id.

Accordingly, "[i]f a state court

clearly and expressly states that its judgment rests on a state
procedural bar[,] this constitutes an independent and adequate
state ground, and the federal court must deny habeas relief."
Green v. Keyser, 2017 WL 5125533, at *6 (S.D.N.Y. Nov. 1, 2017)
(internal quotation omitted).
In this case, the Appellate Division (which was the last state
court to render judgment), expressly found that petitioner’s claim
that the trial court should have sua sponte reopened the Wade
hearing was unpreserved.

Under New York law, a criminal defendant

who does not move to reopen a suppression hearing is barred from
arguing on appeal that the trial court’s failure to do so sua
sponte was error.

See, e.g., People v. Gamble, 137 A.D.3d 1053,

1056(2d Dep’t 2016); People v. Canteen, 295 A.D.2d 256, 256 (1st
Dep’t 2002); People v. Hankins, 265 A.D.2d 572, 572 (2d Dep’t
1999).
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Here, petitioner did not ask the trial court to reopen the
suppression hearing, even after the jury at petitioner’s first
trial failed to reach a verdict on the murder count, thereby
necessitating a second trial.
claim

was

unpreserved,

and

As such, under New York law, his
this

constituted

an

adequate

and

independent state law basis for denial by the Appellate Division.
See Sheard v. Conway, 2012 WL 5603343, at *1 (E.D.N.Y. Nov. 15,
2012) (petitioner’s claim that identification should have been
suppressed was barred on independent and adequate state law grounds
where petitioner failed to move to reopen suppression hearing and
the Appellate Division found that the claim was unpreserved).
c.

Petitioner Cannot Overcome the Procedural Bar

Because petitioner’s claim is procedurally barred, he can seek
habeas relief only if he can show either cause and prejudice or
that a fundamental miscarriage of justice will ensue if his claim
is not considered (i.e. that he is actually innocent).

Petitioner

cannot meet either of these standards.
Petitioner has not identified any cause for his failure to
move to reopen the suppression hearing, or for his failure to cast
his claim in constitutional terms on direct appeal.

Moreover,

petitioner cannot show prejudice, because his claim is without
merit.

As discussed above, the new facts revealed by Mr. Torres’

grand jury testimony did not bear on the suggestiveness of the
procedures used by the police, which is the ultimate issue that the

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trial court had to consider.

Under these circumstances, the Court

cannot find that the trial court’s failure to sua sponte reopen the
Wade hearing constituted a due process violation.
Petitioner also has not claimed that he is actually innocent,
nor

would

the

record

support

a

finding

to

that

effect.

Accordingly, petitioner cannot overcome the procedural bar, and is
not entitled to habeas relief.
IV.

Conclusion
For the foregoing reasons, the petition (Docket No. 1) is

denied and dismissed.

No certificate of appealability shall issue

because petitioner has not shown “that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would
find it debatable whether th[is] . . . [C]ourt was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and
Fed. R. App. P. 24(a)(3), that any appeal from this Decision and
Order would not be taken in good faith, and therefore the Court
denies leave to appeal as a poor person. Coppedge v. United States,
369 U.S. 438, 445-46 (1962).

Any application for leave to appeal

in forma pauperis must be made to the Second Circuit Court of
Appeals in accordance with Fed. R. App. P. 24(a)(1), (4), & (5).
The Clerk of the Court is instructed to close this case.

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ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
__________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
November 21, 2017

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