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United States District Court, Second Circuit
November 20, 2013
LUIS MURIEL HERRERA, Petitioner,v.THOMAS LAVALLEY, Respondent.
PAUL E. DAVISON, Magistrate Judge.
On November 12, 2007, an Orange County jury convicted petitioner Luis Muriel Herrera (petitioner" or "defendant") of first degree attempted robbery, first degree burglary, second degree assault and fourth degree criminal possession of a weapon (a metal knuckle knife). Petitioner's conviction stemmed from a home invasion in the City of Newburgh. New York on November 6. 2006.[1] He was sentenced on February 21, 2008 to concurrent, determinate terms of imprisonment often years (attempted robbery), twelve years (burglary), five years (assault) and one year (weapon possession), along with concurrent terms of five years post-release supervision on each of the felony counts. Petitioner is currently incarcerated at the Fishkill Correctional Facility in Beacon. New York.
Presently before this Court is petitioner's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Said petition is before me pursuant to an Order of Reference dated August 3, 2010 (Dkt. #3). For the reasons set forth below. I respectfully recommend that Your Honor deny the petition in its entirety.
A. The Crime
During the summer of 2006 through November 2006, petitioner frequented an apartment known as the "weed house" located at 178 Renwick Avenue in the City of Newburgh, New York. The "weed house" was also frequented by the Velasco brothers (Omario and Ricardo). Ramberto Vega and Angel Lahoz.
At the "weed house" on November 6, 2006, petitioner, Ricardo Velasco and Vega planned to rob the landlord of a building located at 84 City Terrace. At approximately 5:00 p.m. that evening. Ricardo drove petitioner, Vega and Omario Velasco to 84 City Terrace. Omario remained in the car while the others exited the vehicle. Ricardo knocked and Jesus Mejia, the building superintendent, opened the door. Petitioner and Vega pushed past Mejia and barged into the apartment. Vega then pistol-whipped Mejia. Ricardo left the apartment and returned to the car. Petitioner threatened Mejia with a knife and demanded money. Petitioner and Vega left when they discovered Mejia had no money. They returned to the car and the four men drove back to the "weed house."
B. Pre-Trial Proceedings
The grand jury returned its indictment against petitioner on April 27, 2007.[3] On April 30, 2007, petitioner appeared with counsel and entered a plea of not guilty.
On or about June 18, 2007, petitioner's counsel filed an omnibus motion seeking various forms of pretrial relief including suppression of identification evidence. By Decision and Order dated July 21, 2007, the Orange County Court (De Rosa, J.) inter alia ordered a hearing pursuant to New York Criminal Procedure Law ("CPL") § 710.60(4) to determine the admissibility of any identification evidence. The hearing was held on July 24, 2007, during which the sole witness. Detective Steven Sager, testified as follows:
In April 2007, Detective Sager was employed by the Town of New Windsor Police Department and assigned to a Joint Crime Task Force charged with investigating numerous residential robberies (H. 7).[4] On April 19, 2007, in conjunction with that investigation, Detective Sager conducted two separate interviews: the first with Ricardo Velasco and the second with Omario Velasco (H. 8. 12). Ricardo Velasco stated that he and a man he knew as "Junebo" met for the first time during the previous summer at the "weed house" (H. 22). Ricardo and Junebo "hung out" together at the "weed house" where they smoked marijuana, played video games and planned robberies (H. 22). For the purpose of confirming Junebo's identity, Detective Sager showed Ricardo a six-person photo array and asked him to identify the person he knew as Junebo (H. 9-10). Ricardo selected person number one, a photo of petitioner (H. 10-11). During the second interview. Omario Velasco stated that he "hung out" with Junebo at the "weed house" on multiple occasions (H. 12-13, 23). Omario also stated that he had been with Ricardo and Junebo on one occasion when a crime was committed (H. 23). Detective Sager showed Omario a fresh, unmarked copy of the same photo array shown to Ricardo and asked Omario if he could identify the person in the photos he knew as Junebo (H. 13-14). Omario selected petitioner's photo located in the array as person number one (H. 14).
Following Detective Sager's testimony, petitioner's counsel argued that the photo array was unduly suggestive because petitioner's photo depicted the only balding person with facial hair (H. 26). The Court issued an oral decision holding the identification admissible at trial because "neither the procedure nor the photo array was overly suggestive and was basically in the nature of a confirmatory ID in any event" (H. 29).
C. Request for Adjournment
Jury selection commenced on the morning of November 13, 2007. At approximately 1:30 p.m., as proceedings resumed following a lunch break, defense counsel requested a two-week adjournment of trial (T. 61-63).[5] Defense counsel stated that he had been assigned to the case two weeks prior and had received the file from previous counsel one week prior (T. 61). He specifically noted that his investigator had unsuccessfully attempted to locate the victim of the November 27th robbery at the address specified in the indictment (2556 Route 9W, Cornwall, New York) which, defense counsel learned that morning, had been amended to 706 Gardnertown Road in the Town of Newburgh (T. 62). Indeed, the indictment had been amended in open court on July 24, 2007 and the corrected information matched the address contained in the bill of particulars (T. 62). Defense counsel argued that he had prepared for trial based upon the unamended indictment and, although he was aware of the address listed in the bill of particulars, for strategic reasons he declined to ask the district attorney about the discrepancy (T. 62-63). The trial court denied defense counsel's request for an adjournment because jury selection was already underway and, if the request was granted, the court would have to declare a mistrial (T. 64). Judge De Rosa also noted that defense counsel's investigator was "still employed" and that it was unlikely that the People would finish their case in three days (T. 64).
D. Direct Appeal
Petitioner (by and through counsel) timely appealed his conviction to the Appellate Division, Second Department on the following grounds: (1) the evidence was insufficient as a matter of law to corroborate the accomplice testimony and to establish that the knife (People's exhibit one) was a "metal knuckle knife" as defined in New York Penal Law § 265.00 (5-b) (Resp. Exhs., Exh. 6. at 43-45, 68-69);[6] (2) petitioner was deprived of effective assistance of trial counsel due to the trial court's denial of an adjournment and trial counsel's failure to move for dismissal of the counts stemming from the November 6th incident (counts seven through eleven) based upon the lack of independent corroboration of the accomplice testimony (id. at 55-57, 62-65); (3) the identification procedure was unduly suggestive because (a) the detective indicated that a photo of petitioner was in the array and (b) the witnesses were shown the photo array five months after the crimes were committed (id. at 58-59): (4) petitioner's sentence was harsh, excessive and retaliatory (id. at 60-62): (5) petitioner was deprived of his fundamental right to be present at a material stage of the proceedings. i.e. during an off-the-record conversation between the court and Juror McCartney (id. at 65-67); and (6) the trial court failed to enter a conviction and sentence as to count eleven (criminal weapon possession - knife) and, instead, illegally sentenced petitioner on count ten (criminal weapon possession - gun) as to which he was acquitted (id. at 67-68). By Decision and Order dated December 22, 2009, the Second Department affirmed petitioner's judgment of conviction. People v. Muriel-Herrera , 68 A.D.3d 1135, 892 N.Y.S.2d 150 (2d Dep't 2009). Petitioner, by and through counsel, timely submitted an application for leave to appeal to the New York Court of Appeals, wherein he sought review of all of the claims raised in his appellate brief (Resp. Exhs. 161-63). The Court of Appeals denied petitioner leave to appeal on April 26, 2010. People v. Muriel-Herrera , 14 N.Y.3d 843, 927 N.E.2d 570, 901 N.Y.S.2d 149 (2010). Petitioner did not seek a writ of certiorari to the United States Supreme Court.
E. The Instant Petition and Application for Stay of Proceedings
Petitioner timely[7] filed the instant Petition for a Writ of Habeas Corpus on or about June 30, 2010, wherein he seeks habeas review of the claims he raised on direct appeal. By letter dated October 12, 2010 (Dkt. #16), petitioner requested a stay of the proceedings to allow him to exhaust certain unidentified claims and thereafter file an amended petition. By Order entered November 4, 2010 (Dkt. #17), the undersigned directed petitioner to identify, within thirty days of said Order, all grounds set forth or to be set forth within his state petitions. On or about December 4, 2010, petitioner submitted a document entitled "Notice of Motion to Vacate Judgment & Set Aside Sentence" which identifies five claims to be (or that were) asserted in a CPL § 440.10 motion in Orange County Supreme Court: (1) the trial court erroneously prevented petitioner from introducing certain exculpatory evidence; (2) the indictment was improperly amended; (3) trial counsel was ineffective because he did not move to dismiss the counts stemming from the November 6th incident (counts seven through eleven); (4) the verdict is a "nullity" because no reasonable jury could have found petitioner guilty; and (5) petitioner's sentence violates due process. By Memorandum and Order dated January 11, 2011 (Dkt. #18), the undersigned stayed the proceedings pending the exhaustion of said claims and directed petitioner, within thirty days after a final state decision on said claims, to supplement the instant petition with any of the newly-exhausted claims.
By Decision and Order dated March 22, 2011, the County Court (De Rosa, J.) held as follows: (1) the majority of grounds cited appear on the record and either were or could have been raised on direct appeal (citing CPL § 440.10(2)); (2) petitioner's argument as to the issue of exculpatory evidence is meritless because the investigator's report and victim's statement were marked as exhibits at trial and used by defense counsel during cross-examination of the victim; and (3) because it appeared the transcript of the sentence was in error, the County Court set aside any sentence as to count ten and imposed sentence nunc pro tunc as to count eleven. Memo Endorsed Letter from respondent dated July 11, 2012 (Dkt. #21). Petitioner did not seek leave to appeal; respondent, however, sought reargument as to the County Court's Order setting aside petitioner's misdemeanor sentence. By Decision and Order dated June 21, 2011, the County Court granted respondent's motion and vacated the portion of its previous order setting aside the sentence "as it appears the issue was previously addressed by the Appellate Court." Id . Petitioner thereafter served respondent with a copy of his application seeking leave to appeal the June 21st Order. Id . By Memorandum Endorsement dated July 17, 2012 (Dkt. #21), the undersigned directed petitioner to advise this Court, in writing, by August 17, 2012: (1) whether there was any reason the stay should not be lifted; and (2) whether he intended to amend the instant petition. Petitioner failed to respond. Accordingly, on September 24, 2012, the undersigned ordered the stay lifted (Dkt. #22).
On or about October 8, 2012, petitioner submitted a Reply (Dkt. #23), wherein (1) he conceded that, because he did not perfect his appeal, the claims asserted in his § 440.10 motion were unexhausted and deemed procedurally barred, but (2) he argued that this Court should excuse his procedural default and review said claims due to his actual innocence. The Court notes, however, that petitioner did not file an Amended Petition despite the Court's prompting. Thus, the only claims presented for habeas review - ergo the only claims addressed in this Report and Recommendation - are those raised in his original petition.[8]
A. Applicable Law
"Habeas review is an extraordinary remedy." Bousley v. United States , 523 U.S. 614, 621 (1998) (citing Reed v. Fancy , 512 U.S. 339, 354 (1994)). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. § 2244 and 2254. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with § 2254(d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), are summarized below.
1. Timeliness
The AEDPA established a one-year statute of limitations for the filing of a habeas corpus petition seeking relief from a state court conviction. See 28 U.S.C. § 2244(d)(1). The one-year limitation period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
The AEDPA's statute of limitations is tolled during the pendency of a properly filed application for state post-conviction relief, or other collateral review, of a claim raised in the petition. See id. § 2244(d)(2). The one-year limitation period is also subject to equitable tolling, which is warranted when a petitioner has shown "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida , 130 S.Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005)). In the Second Circuit, equitable tolling is confined to "rare and exceptional circumstance[s], " Smith v. McGinnis , 208 F.3d 13, 17 (2d Cir. 2000) (per curiam) (internal quotation marks omitted), which have "prevented [the petitioner] from filing his petition on time, " Valverde v. Stinson , 224 F.3d 129, 134 (2d Cir. 2000) (internal quotation marks and emphasis omitted). The applicant for equitable tolling must "demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances." Id.
2. Exhaustion
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel , 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) ("[am application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(I) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant"); id. § 2254(c) (the petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State... if he has the right under the law of the State to raise, by any available procedure, the question presented"). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy , 455 U.S. 509, 518-19 (1982).
To exhaust a federal claim, the petitioner must have "fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim, " and thus "giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese , 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition 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) (citing Smith v. Phillips , 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition." Galdamez v. Keane , 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). To this end, the Second Circuit has delineated a number of ways in which a petitioner may fairly apprise the state court of the constitutional nature of his claim, including: "a) reliance on pertinent federal cases employing constitutional analysis, b) reliance on state cases employing constitutional analysis in like fact situations, c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." See Carvajal v. Artus , 633 F.3d 95, 104 (2d Cir. 2011). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter , 529 U.S. 446, 451 (2000).
However, "[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." Reyes v. Keane , 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). "In such a case, a petitioner no longer has remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke , 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes , 118 F.3d at 139. However, absent a showing of either "cause for the procedural default and prejudice attributable thereto, " Harris v. Reed , 489 U.S. 255, 262 (1989), or "actual innocence." Schlup v. Delo , 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are "plainly meritless." Rhines v. Weber , 544 U.S. 269, 277 (2005); see 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); Padilla v. Keane , 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
3. Procedural Default
Federal habeas corpus review of a state court's denial of a state prisoner's federal constitutional claim is barred if the state court's decision rests on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional violation, or show "that failure to consider the claims will result in a fundamental miscarriage of justice." See Coleman v. Thompson , 501 U.S. 722, 750 (1991). See also Lee v. Kemna , 534 U.S. 362, 375 (2002); Dunham v. Travis , 313 F.3d 724, 729 (2d Cir. 2002). A procedural ground is "independent" if "the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." See Harris , 489 U.S. at 263 (internal quotation marks omitted). A procedural bar is "adequate" if it is "based on a rule that is firmly established and regularly followed by the state in question." Monroe v. Kuhlman , 433 F.3d 236, 241 (2d Cir. 2006) (internal quotation and citation omitted).
In certain limited circumstances, however, "even firmly established and regularly followed state rules will not foreclose review of a federal claim if the application of the rule in a particular case is exorbitant, " See Garvey v. Duncan , 485 F.3d 709, 713-14 (2d Cir. 2007) (citing Lee , 534 U.S. at 376). To this end, the Second Circuit has set forth the following "guideposts" for evaluating the adequacy of the state procedural bar in the context of "the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances":
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial, " and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.
Cotto v. Herbert , 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee , 534 U.S. at 381-85).
4. Standard of Review
"[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire , 502 U.S. 62, 68 (1991). See 28 U.S.C. § 2254(a). When reviewing petitions filed subsequent to the AEDPA's effective date, a federal court may not grant habeas relief for any claim adjudicated on the merits in state court unless the petitioner establishes, in pertinent part, that the 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." 28 U.S.C. § 2254(d)(1).
A state court's decision is contrary to" clearly established Federal law if(1) the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law" or (2) the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that reached by the Supreme Court of the United States]." Williams v. Taylor , 529 U.S. 362, 405 (2000). As to the "unreasonable application" prong, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A state court decision involves an "unreasonable application" of Federal Supreme Court precedent if(l) "the state court identifies the correct legal rule from [Federal Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case" or (2) "the state court either unreasonably extends a legal principle from [Federal Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. However, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter , 131 S.Ct. 770, 786 (2011) (citation omitted). In other words, [a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state courts ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87.
Finally, under the AEDPA, the factual findings of state courts are presumed to be correct. See 28 U.S.C. § 2254(e)(1); see also Nelson v. Walker , 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
B. Ineffective Assistance of Trial Counsel Claims
Petitioner claims he was deprived of effective assistance of trial counsel due to the trial court's denial of an adjournment and trial counsel's failure to move for dismissal of the counts stemming from the November 6th incident (counts seven through eleven) based upon the lack of independent corroboration of the accomplice testimony. The Supreme Court has stated that [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington , 466 U.S. 668, 686 (1984). Under Strickland's two-pronged test, petitioner will prevail on his ineffective assistance claim if he demonstrates (1) that his attorney's performance "fell below an objective standard of reasonableness" and (2) that there is a "reasonable probability" that, but for counsel's error, "the result of the proceeding would have been different." See id. at 694. Both prongs of the test must be met in order for petitioner to prevail. United States v. Campbell , 300 F.3d 202, 214 (2d Cir. 2002). Moreover, judicial scrutiny of counsel's performance must be highly deferential... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland , 466 U.S. at 689.
1. Denial of Request for Adjournment
In the middle of jury selection, defense counsel requested a two-week adjournment of trial on the ground that his investigator had unsuccessfully attempted to locate the victim of the November 27th robbery at the address specified in the indictment (2556 Route 9W, Cornwall, New York) which, defense counsel learned that morning, had been amended to 706 Gardnertown Road in the Town of Newburgh (T. 62). The trial court denied defense counsel's request for an adjournment because jury selection was already underway and, if the request was granted, the court would have to declare a mistrial (T. 64). Petitioner alleges that he is entitled to habeas relief because the trial court's refusal to grant an adjournment ultimately deprived petitioner of effective assistance of trial counsel. However, because petitioner was acquitted of all charges connected to the November 27th robbery, he cannot demonstrate that he was prejudiced by the trial court's ruling. The Appellate Division's decision rejecting this claim, therefore, was not contrary to, nor did it amount to an unreasonable application of, federal law as established by the Supreme Court. Accordingly, I conclude, and respectfully recommend, that petitioner is not entitled to habeas relief on this claim.
2. Failure to Move for Dismissal of Counts 7-11
Petitioner also argues that trial counsel was ineffective because he failed to move for dismissal of the counts stemming from the November 6th incident based upon the lack of independent corroboration of the accomplice testimony. Under New York law, "[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense." N.Y. Crim. Proc. Law § 60.22(1). Petitioner's claim fails, however, because he cannot demonstrate any prejudice resulting from his counsel's failure to move for dismissal of the counts associated with the November 6th incident.
Petitioner's ineffective assistance claim is grounded upon the assumption that, if his attorney had moved to dismiss the counts at issue based upon a lack of corroborative non accomplice testimony, those counts would have been dismissed. There is nothing to suggest, however, that this would have been the result but for counsel's deficient performance. Indeed, the prosecution offered non-accomplice corroborative testimony which connected petitioner to the November 6th robbery. Angel Lahoz testified that, on November 6, 2006, he was at the weed house' with the Velasco brothers when Ricardo Velasco received a phone call from Ramberto Vega (T. 369). Ricardo and Omario left to pick up Vega (T. 369). Petitioner arrived at the weed house" and asked for Vega and Ricardo; Lahoz told petitioner that Ricardo and his brother left to pick up Vega, and petitioner left (T. 369). Lahoz testified that Vega and petitioner returned to the "weed house" about forty-five minutes later, and that Lahoz overheard them discussing what had happened at 84 City Terrace (T. 369-70). Lahoz heard petitioner say "they had made a mistake in not sending someone from the back, around the back" (T. 370-71). Lahoz also testified that he last saw petitioner that morning (on the day Lahoz testified), at which time petitioner asked Lahoz "not to say anything" (T. 371-72).
Further, any ultimate prejudice to petitioner was ameliorated by the trial court's instruction to the jury regarding accomplice testimony:
Now, under our law, and only with respect to counts seven, eight, nine, ten and eleven, Ricardo Velasco, who testified here, is an accomplice. He is an accomplice, because there's evidence that he participated in and was convicted of a crime based upon conduct involved in the allegations here against the defendant. Our law is especially concerned about the testimony of an accomplice who implicated another in the commission of a crime, particularly when the accomplice has received, expects or hopes to receive a benefit in return for his testimony.
Therefore, our law provides that a defendant may not be convicted of any crime upon the testimony of an accomplice, unless it is supported by corroborative evidence tending to connect the defendant with the commission of the crime.
In other words, even if you find the testimony of Ricardo Velasco to be believable, you can't convict the defendant solely upon that testimony, unless you also find that it was corroborated by other evidence tending to connect the defendant with the commission of the crime. The corroborative evidence need not by itself prove the defendant guilty. What the law requires is that there be evidence, apart from the testimony of the accomplice, that tends to connect the defendant with the commission of the crime charged in such a way as may reasonably satisfy you that the accomplice is telling the truth about the defendant's participation in that crime.
(T. 749-50.) In sum, the state court's decision denying petitioner's ineffective assistance of counsel claim was neither contrary to, nor an unreasonable application of, federal law. Accordingly, I conclude and respectfully recommend that petitioner is not entitled to habeas relief on the grounds of ineffective assistance of counsel.[9]
C. Insufficient Evidence Claims
Petitioner claims that the evidence was insufficient as a matter of law to corroborate the accomplice testimony and to establish that the knife (People's exhibit one) was a "metal knuckle knife" as defined in New York Penal Law § 265.00 (5-b). Petitioner presented said arguments to the Second Department in Points I and IX of his brief on direct appeal; the Second Department affirmed petitioner's judgment of conviction and stated, inter alia:
The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review, as defense counsel merely made a general motion for a trial order of dismissal based upon the People's alleged failure to make out a prima facie case ( see CPL 470.05(2); People v. Hawkins, H N.Y.3d 484, 491-492, 872 N.Y.S.2d 395, 900 N.E.2d 946). in any event, viewing the evidence in the light most favorable to the prosecution..., we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.
Muriel-Herrera , 892 N.Y.S.2d 150, 151 (internal citation omitted).
New York's contemporaneous objection rule (codified at CPL § 470.05(2)) "provides that, with a few exceptions not applicable here, New York appellate courts will review only those errors of law that are presented at a time and in a manner that reasonably prompted a judge to correct them during criminal proceedings." See Downs v. Lane , 657 F.3d 97, 103 (2d Cir. 2011).[10] More specifically, in order to preserve his insufficient evidence claim, petitioner was required to make a motion to dismiss at the close of the prosecution's case. Scission v. Lempke , 784 F.Supp.2d 237, 243-44 (W.D.N.Y. 2011). "Moreover, New York courts have consistently held that a general motion to dismiss is not sufficient to preserve the contention that the evidence at trial was insufficient to establish a specific element of the crime charged." Id. at 244 (citing People v. Gray , 86 N.Y.2d 10, 20-22, 652 N.E.2d 919, 629 N.Y.S.2d 173 (1995)). See also Richardson v. Greene , 497 F.3d 212, 218 (2d Cir. 2007) ("New York's highest courts uniformly instruct that to preserve a particular issue for appeal, defendant must specifically focus on the alleged error.") (citation omitted; emphasis added in Richardson ).
The record here reveals that, at the close of the People's case, defense counsel made only a general motion to dismiss which did not preserve petitioner's insufficient evidence claim (T. 579-80). The Second Department's decision contained a plain statement that petitioner's insufficient evidence claim was "unpreserved."[11] Although the state court also rejected said claim on its merits, the Appellate Division explicitly invoked an "independent" state procedural ground as a basis for its decision. Ordinarily, federal review is precluded where "the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Carrion v. Smith , 549 F.3d 583, 587 (2d Cir. 2008) (quotation and citation omitted). The Second Circuit has consistently recognized New York's contemporaneous objection rule as an independent and adequate state procedural rule barring habeas review. See, e.g., Whitley v. Ercole , 642 F.3d 278, 292 (2d Cir. 2011); Brown v. Ercole, 353 Fed.App'x 518, 520 (2d Cir. 2009); Richardson , 497 F.3d at 218; Garcia v. Lewis , 188 F.3d 71, 79 (2d Cir. 1999) (federal courts "have observed and deferred to New York's consistent application of its contemporaneous objection rules").
Moreover, applying the Cotto "guideposts, " Cotto , 331 F.3d at 240, the state court's application of its own procedural rule was not "so exorbitant' as to render it inadequate to preclude habeas review of the federal claim." See Whitley , 642 F.3d at 287-88. As to the first Cotto consideration, it is "meaningless to ask whether the alleged procedural violation was actually relied on in the trial court - the violation only first occurred when defendant raised an argument on appeal that he had not raised earlier." See Garvey , 485 F.3d at 719. The second Cotto consideration also weighs against petitioner. As noted above, New York appellate courts routinely hold that a motion to dismiss for insufficient evidence must be "specifically directed at the alleged error." See People v. Carncross , 14 N.Y.3d 319, 324-25, 927 N.E.2d 532, 901 N.Y.S.2d 112 (2010); People v. Hawkins , 11 N.Y.3d 484, 491-492, 900 N.E.2d 946, 872 N.Y.S.2d 395 (2008); People v. Finger , 95 N.Y.2d 894, 895, 739 N.E.2d 290, 716 N.Y.S.2d 34 (2000). Further, petitioner does not argue that "unique circumstances" prevented his compliance.[12] The third Cotto consideration similarly disfavors petitioner because, just as in Garvey, petitioner did not simply violate the formal requirements" of CPL 470.05(2). but rather "the very essence" of the rule. See Garvey , 485 F.3d at 720. Finally, petitioner's compliance would have served a legitimate purpose in that "[a]t a bare minimum, the trial court could have developed a factual record supporting its decision that could then properly be reviewed on appeal." See Whitley , 642 F.3d at 290.
Because there is an adequate and independent finding by the Appellate Division that petitioner procedurally defaulted on the insufficient evidence claim he now asserts as grounds for habeas relief, petitioner must demonstrate in his habeas petition "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman , 501 U.S. at 750. Petitioner, however, has failed to demonstrate cause or prejudice, [13] and there is no indication that this Court's failure to address the merits of the unpreserved claim would result in a fundamental miscarriage of justice. Although petitioner asserts that he is actually innocent, he has not supported his claim of actual innocence with any "new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup , 513 U.S. at 324. Accordingly, I conclude and respectfully recommend that petitioner's procedural default bars federal review of his insufficient evidence claim.[14]
D. Violation of Fundamental Right to be Present at a Material Stage of the Proceeding
On the first day of trial, prior to the court's preliminary instructions to the jury, the trial court spoke with juror number one, Miss McCartney, on the record in the presence of petitioner and counsel (T. 207-10):
THE COURT: I need Miss McCartney out here, juror number one.
(Juror enters the courtroom.)
THE COURT: All right. Good morning, Miss McCartney. You wanted to talk to us.
SWORN JUROR: Well, I had just told Tern downstairs that this morning I was just extremely nervous. So, she recommended that I talk to you. I don't know why.
THE COURT: Is it something we've said or done that made you nervous?
SWORN JUROR: No. I think it's just a little bit of the situation. That's all.
THE COURT: Well, you've never been on jury duty before?
SWORN JUROR: No, I haven't.
THE COURT: See, to be honest with you, that's not unusual. You're sitting here and you're in a room and with people you don't yet know. You will get to know the jurors by the time this is over.... So, I can understand why you... might be nervous. I mean, you're still going to be able to listen to the testimony and things like that; right?
SWORN JUROR: Um-hum.
THE COURT: All right. I'll tell you what, what you're going to hear this morning is you're going to hear my preliminary instructions.... Then you're going to hear opening statements....
So, I mean, if you feel that you're getting very, very nervous, well, talk to us again, but, I mean, I can understand why you might be a bit nervous, because you've never done this before, but as long as you can listen and pay attention to what's going on, you'll find that - and once you get to know your fellow jurors, which will happen quite quickly, usually it does, I think that would probably calm you down a bit. So, we'll give this a shot here?
SWORN JUROR: Urn-hum.
THE COURT: Do you have any questions, Mr. Heavner, for Miss McCartney?
MR. HEAVNER: I have no questions.
THE COURT: Mr. Brite?
MR. BRITE: No.
THE COURT: As a matter of fact, you can just take your seat right there, Miss McCartney, which would be seat number one, and we'll bring the rest of the jurors out.
At the close of proceedings later that day, after the jurors exited the courtroom, the trial court stated (T. 382): "I asked Miss McCartney if she had calmed down a bit. She said she was fine."
Petitioner contends he was deprived of his fundamental right to be present at a material stage of the proceedings, i.e. when the court asked Miss McCartney "if she had calmed down a bit." Petitioner presented said argument to the Second Department in Point VI of his brief on direct appeal; the Second Department categorized the claim as "defendant's remaining contention" and found it "unpreserved for appellate review and, in any event, []without merit." Muriel-Herrera , 892 N.Y.S.2d at 152. For the reasons set forth in the previous section, the Second Department's statement constitutes an adequate and independent finding that petitioner procedurally defaulted on his "right to be present" claim. Further, petitioner has failed to demonstrate cause, prejudice or that he is actually innocent, and there is no indication that this Court's failure to address the merits of the unpreserved claim would result in a fundamental miscarriage of justice. Accordingly, I conclude and respectfully recommend that petitioner's procedural default bars federal review of his "right to be present" claim.
E. Unduly Suggestive Identification
Petitioner asserts that his due process rights were violated when Ricardo and Omario Velasco, who independently identified petitioner from a six-person photo array, were permitted to identify petitioner in court. On direct appeal, petitioner argued that the identification procedure was unduly suggestive because (a) the detective indicated that a photo of petitioner was in the array and (b) the witnesses were shown the photo array five months after the crimes were committed. The Appellate Division denied said claim, holding:
The evidence presented at the suppression hearing established that both witnesses had told the police that they knew the defendant well before they were asked to identify him in a photo array. This demonstrated that the identifications were merely confirmatory.... Therefore, the County Court properly denied that branch of the defendant's motion which was to suppress identification testimony.
Muriel-Herrera , 892 N.Y.S.2d at 151 (citation omitted).
"A defendant's right to due process includes the right not to be the object of suggestive police identification procedures that make an identification unreliable.... Generally, a witness will not be allowed to make an in-court identification if the authorities' pretrial photographic identification procedures were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. " United States v. Douglas , 525 F.3d 225, 242 (2d Cir. 2008) (internal quotation marks and citations omitted) (emphasis in original). it is well-settled that "[r]eliability is the touchstone for the admission of eyewitness identification testimony pursuant to the Due Process Clause of the Fourteenth Amendment.... [and] our inquiry into the reliability of eyewitness identifications proceeds in two stages." Brisco v. Ercole , 565 F.3d 80, 88 (2d Cir. 2009). First, the Court must determine whether the identification procedures "unduly and unnecessarily suggested that the defendant was the perpetrator." Id . (quoting Raheem v. Kelly , 257 F.3d 122, 133 (2d Cir. 2001)). Second, even if the initial identification was impermissibly suggestive, the admission of the evidence will nevertheless satisfy constitutional standards if the identification was independently reliable." Wilson v. Heath, No. 10-CV-3814, 2013 WL 5530673, at *15 (E.D.N.Y. Sept. 30, 2013) (quoting Brisco , 565 F.3d at 88).
Whether identification procedures are unduly and unnecessarily suggestive "is a fairly permissive standard, and a [state) court applying this standard to the facts of a specific case is entitled to significant leeway' when [the habeas court] review[s] its decision for reasonableness." Richardson v. Superintendent of Mid-Orange Corr. Facility , 621 F.3d 196, 202 (2d Cir.2010) (citations and internal quotation marks omitted). Here, the Appellate Division's decision was based on a "New York rule that in-court identifications may be admissible despite prior suggestive procedures if the witness knew the defendant." Stallings v. Wood, No. 04-CV-4714, 2006 WL 842380, at *11 (E.D.N.Y. Mar. 27. 2006). "A New York court's invocation of the "confirmatory identification" exception is... tantamount to a conclusion that, as a matter of law, the witness is so familiar with the defendant that there is "little or no risk" that police suggestion could lead to a misidentification." Wilson, 2013 WL at *15 (quoting People v. Rodriguez , 79 N.Y.2d 445, 450, 593 N.E.2d 268, 583 N.Y.S.2d 814 (1992)).
Here, notably, petitioner does not allege that he was not acquainted with either Velasco brother prior to their identifications. Ricardo Velasco met petitioner (known to Ricardo as "Junebo") at the "weed house" eight or nine months prior to the photo array identification (H. 22), and they "hung out" together at the "weed house" where they smoked marijuana, played video games and planned robberies (H. 22). Prior to his photo array identification, Omario Velasco "hung out" with petitioner (known also to Omario as "Junebo") at the "weed house" on multiple occasions (H. 12-13, 23). and Omario had been with Ricardo and petitioner on one occasion when a crime was committed (H. 23), Thus, even if the photo array was impermissibly suggestive, the Velasco brothers' "prior acquaintance with [petitioner] established that the in court identification[s were] reliable notwithstanding the prior photographic display." Espinal v. Duncan, No. 00 Civ. 4844 , 2000 WL 1774960, at *3 (S.D.N.Y. Dec. 4, 2000) (referring to single photo display and citing United States v. Wade , 388 U.S. 218, 241-42 & n. 33 (1967)). Cf. Wiggins v. Greiner , 132 Fed.App'x 861, 865 n.3 (2d Cir. 2005) ("Under New York law, a confirmatory identification' from a single photograph does not implicate due process concerns."); Wilson, 2013 WL at *15 (independently reliable identification by witness who identified petitioner from a single photo, knew petitioner by the name "Black, " saw petitioner every day for several months when they sold cigarettes in the same area, conversed with petitioner, knew he was married and knew he lived in Coney Island); Stallings, 2006 WL 842380, at *11 (although witness was shown a single photo of petitioner, witness had seen petitioner more than ten times in the neighborhood and had taken out two orders of protection against him; thus, his "longstanding familiarity with petitioner rendered his identification independently reliable"); Martinez v. Artuz, No. 99 Civ. 5744, 2001 WL 540737, at *9 (S.D.N.Y. May 22, 2001) (where witness knew petitioner for three years, regularly spoke to him and saw him daily, her "prior acquaintance with [petitioner] made the suggestiveness of any identification procedure irrelevant because [the witness] own familiarity with the [petitioner] provided a reliable and independent basis for the identification"); Espinal , 2000 WL 1774960, at *2 (witness knew petitioner by street and first name, knew where he lived, what car he drove, and had seen him at least twenty times in the past year). In sum, the Second Department's denial of petitioner's due process claim was neither contrary to, nor an unreasonable application of federal law. Accordingly, I conclude and respectfully recommend that petitioner is not entitled to habeas relief on the ground that the photo identification process was unduly suggestive.
F. Illegal Sentence
Petitioner was charged with two counts of fourth degree criminal possession of a weapon pursuant to New York Penal Law § 265.01(1): Count 10 alleged that petitioner possessed a firearm; Count 11 alleged that he possessed a metal knuckle knife.[15] Petitioner was acquitted of Count 10 but convicted of Count 11. At sentencing, the trial court erroneously imposed a one-year sentence "[a]s to Count 10, " to run concurrently with all other sentences. Transcript of Sentencing (attached to Trial Transcript Vol. 4), Dkt. #11, at 8. Petitioner challenged said illegal sentence" on direct appeal; the Appellate Division held as follows:
The courts possess an inherent power to correct clerical errors ( see People v. Minaya, 54 N.Y.2d 360, 364 [1981], cert denied 455 U.S. 1024 [1982]). "This power exists in criminal as well as civil cases and has been held specifically applicable to errors relating to sentence" ( id. at 364 [citation omitted]). Here, the court erroneously stated that it was sentencing the defendant for criminal possession of a weapon in the fourth degree in connection with his conviction on count 10 of the indictment. In fact, the defendant was acquitted of count 10, but convicted of criminal possession of a weapon in the fourth degree on count 11. The court properly corrected this error in the defendants Uniform Sentence and Commitment sheet, and we see no need to remit the matter for resentencing.
Muriel-Herrera , 892 N.Y.S.2d at 151.
Petitioner reasserts his "illegal sentence" claim on habeas review. However, petitioner does not allege any constitutional violation arising from his sentencing; indeed, he cites no law (state or federal) in support of his claim.[16] Because petitioner has not presented his "illegal sentence" claim in federal constitutional terms, said claim is not cognizable on federal habeas review. See Estelle , 502 U.S. at 68; Lewis v. Jeffers , 497 U.S. 764, 780 (1990) ("[F]ederal habeas corpus relief does not lie for errors of state law."). Accordingly, I conclude and respectfully recommend that petitioner's "illegal sentencing" claim does not provide a basis for habeas relief.[17]
G. Harsh Excessive and Retaliatory Sentence
Petitioner argues that his sentence was harsh, excessive and in retaliation for the exercise of his constitutional right to a jury trial. Petitioner presented said arguments to the Second Department in Point IV of his brief on direct appeal; the Second Department upheld petitioner's sentence. Muriel-Herrera , 892 N.Y.S.2d at 151.
Generally, where the sentence imposed falls within the range prescribed by state law, no constitutional issue is presented upon which habeas corpus relief can be granted. S White v. Keane , 969 F.2d 1381, 1383 (2d Cir. 1992). Here, petitioner's aggregate twelve-year sentence was considerably less than the maximum permissible sentence of twenty-five years for the class B violent felony conviction of first degree burglary. See N.Y. Penal L. § 140.30; 70.02(3)(a).
However, petitioner also contends that his sentence - which falls within the permissible statutory range - was in retaliation for his rejection of a plea bargain.[18] The Supreme Court has determined that due process is violated when a penalty is imposed upon a person for electing to exercise a constitutionally protected right, including the right to have a jury trial in a criminal case. See Bordenkircher v. Hayes , 434 U.S. 357, 363 (1978). "However, the mere fact that the sentence imposed following trial is greater than the offer made during plea negotiations, does not indicate that a petitioner has been punished for exercising his right to proceed to trial." Walker v. Walker , 259 F.Supp.2d 221, 226 (E.D.N.Y. 2003) (citation omitted). See Brown v. Donnelly , 371 F.Supp.2d 332, 342 (W.D.N.Y. 2005) (rejecting petitioners claim that he was sentenced vindictively for exercising his right to go to trial, "because the judge never stated or implied that the sentence was based on [petitioners] refusal of the plea offer"); Naranjo v. Filion, No. 02 Civ. 5449 , 2003 WL 1900867, at *9-10 (S.D.N.Y. Apr. 16, 2003) (rejecting defendants argument that the disparity between the prosecution's pretrial plea offer (5-10 years) and defendants sentence (25-50 years) suggested vindictiveness). Here, apart from his conclusory allegation of retaliation, petitioner proffers no evidence to suggest vindictiveness or any other improper criterion influenced the sentence the trial court imposed. In sum, the Appellate Division's decision upholding petitioner's sentence was neither contrary to, nor an unreasonable application of, federal law. Accordingly, I conclude and respectfully recommend that petitioner's claim for habeas relief on the ground that his sentence was harsh, excessive and retaliatory must be dismissed.
For the reasons set forth above, I conclude - and respectfully recommend that Your Honor should conclude - that the instant petition for a writ of habeas corpus should be denied in its entirety. Further, because reasonable jurists would not find it debatable that petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel , 529 U.S. 473, 483-84 (2000).[19]
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Now that the festival of Ganpati is on, the lead cast of upcoming film Kismat Love Paisa Dilli was recently spotted at a popular radio station to celebrate their initiative of a green Ganeshotsav. Lets see what fun was lined up here.
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Brooke Shaden - Creating Impact in a Dull Space
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Want to see 10 of the most amazing church buildings in the world? I mean "jaw dropping" amazing? Click here
Want to see 10 of the most amazing church buildings in the world? I mean "jaw dropping" amazing? Click here
Let's face it, the life on the inside of the church walls and the life outside, in the world, just don't match up. I would like the purpose of the church to be to make the two match. How to do this? Live what you believe.
I am very weary of people who teach one thing on Sunday and demonstrate something else the other six days of the week. It crumbles me.
So live what you believe. It's all about doing. Reach out to those who need help. Do for them what they cannot do for themselves. Show them kindness, love, purpose and worth. Show them hope. Show them Jesus.
I am reminded of the old AVB song, "You can't go to church, 'cause the church is you"
I agree that we are confused about what the word "CHURCH" means but being the CHURCH is way more important to me than using in its proper context. I like what you said in a previous blog about this Church is… an older gentleman who gives his watch instead of just the time. If we acted like the CHURCH and did not leave it to the "Ministers" to do.
Trey I do have to admit, I am pretty anti-building they are nice but they are such a stumbling block. Just my opinion but I think that our energies could be better spent on people rather than weeding the roses. That could get me in trouble with some of the ladies.
Loved the link to the amazingly beautiful church buildings.
I agree that building-centered Christianity was probably the worst thing that could have happened to the church. But since we build buildings, I wish more buildings (especially Churches of Christ) were built with more thought given to function and form than bottom dollar, low-bid budgets. (And please, put women on the design committees – too many buildings were obviously designed by men who are aesthetically-challenged.)
When I was growing up my mother used to be obsessed about teaching us children to not call the building "the church" — "The church is the people, not the building." It really got annoying after a while!! Ha. But now that I'm older, I realize the importance of using terminology to express the meaning of the church. I notice my kids saying "we're going to church" even though I try not to say it much, so I'm not sure if they just picked it up one of the few times I have said it or what. It seems legalistic, but I do think the way we talk about "going to church" has affected how we live out our role as the church. There are too many people that only act like the church when they're "at church," and maybe we would have that mindset less if we described ourselves better. Just a thought.
Definitely if we want to fix the problem, we're going to have to break the cycle NOW and teach our children better … the best way to teach is by example!! It's hard to turn around a big ship, but we'll never do it if we don't try.
I think that my thinking about this has changed as I have gotten older. I used to believe that any money spent on "stuff" was a waste, but here is an example that change that thinking. I believe that "home" is anywhere my family is together. However, we need a "home" to take care of our practical needs.
Our church building is spectacular. At first that concerned me, but that place is always in use. There are always bible studies, marriage conferences, financial ministries, and so much more available at the building for healing those in need. If that building offers a place to minister to others then it is worth every penny. We just have to make sure that the "church" are at "church" so that we are most effective to serve when anyone enters.
So there is my two cents.
Our church building is in use every day of the week also. It's a very busy place.
Personally, I like the feeling of safety and comfort that I can find inside the church building. I just wish more of that feeling could spill out into the rest of the world. Make sense? Maybe it's just me, I don't know.
I don't know. The older I get, the more I like the institutional side of Christianity. Is that bad? Necessarily?
One thing's for sure. I don't care what anybody says, what we DO in those buildings of ours turns them into sacred space. And I don't think that's a sign of our sin. I think it's evidence that gnosticism ain't so. What I mean is, in spite our indoctrination, every member of the Church of Christ has experienced the truth that architecture has the capacity to alter (altar?!) our perceptions of reality. Why can't we just go with that?
No, I'm not for building monuments to God (although the Almighty has commanded that sort of thing in the past). Yes, I get that the church and the building aren't the same. And yes, I'm all for Christians acting like Christ on Tuesday, etc. It's just that I think there's a ditch on both sides of this road.
loved the pictures, especially the one in columbia, I have seen three of them in person….
one brother here points out that on many church websites, (including ours) you get a picture of the building. He wants us to get a big group picture to put on the site instead.
Are we, or can we be the church alone??
My vote goes for two – Chrystal Cathedral and the Abston Church of Christ. I love the outdoor atmosphere of the Chrystal Cathedral – too bad we can't worship outdoors. Hooray that we got a mention, even if our "church" was created from LEGOs (I'm surprised that no one has made any comments on the "church of Christ" being plastic).
I like what Frank says. I have tried to teach folks that holiness is not intrinsic to our buildings but does come about because of the use we make of them.
Actually we can in one sense say "go to church" and be accurate. The Greek word ekklesia probably meant "assembly" to the man-in-the-street during the first century (Acts 19:33, 41). So we do go to assembly. However, I do realize that the "assembly" is something greater than just the gathering on Sunday. That is what I think Paul in his epistles is emphasizing. We are the "church" or "assembly" 24/7. I think what Frank is saying is that if we do what is right in the institutional portion of the "assembly" then we will be the relational "assembly" the rest of the week. Frank's ideas may be illustrated in the difference between a house (institutional) and a home (relational). I also like what John Roberts said. As long as we are going to have buildings, let's make them functional. Let's also make them so we go grow and adapt them as needs change. One thing is to put more rooms for adult Bible studies (Sun AM, Wed, and other days of the week).
Lisa's Mom is still passionate about not saying "let's go to church" it's just that she doesn't have any more kids at home to teach. However, I'm sure once the grandkids get old enough she will start on them.
I love the pictures of the churches. I too thought of the old AVB song "You Can't Go to Church, Cause the Church is You" while reading your blog.
At Highland Oaks our building is used 4 or 5 times a week for various gatherings of the community. I think that's a great thing. It's not a holy of holy's place where only those who are members can come. I think when we "go to church" it's important to focus on why we are gathering there and who we are gathering there to worship. To allow ourselves to invite the presence of God into our worship and into our lives. More importantly who are we when we leave and are we taking the presence of God with us.
Brian, my husband spent a semester in Florence (& other places) with Harding's program and he is forever mentioning the places and things he's seen that I haven't. It gets annoying after a while. :o)
Sorry, Dad, but the Crystal Cathedral looks too much like an office building from the outside with way too much wasted space on the inside. IMO (o;
I think the Jubilee Church looks pretty cool.
(I forgot to check out the church buildings when I stopped by earlier.)
Why can't you have church outside?
what happen to the old brushharbors
Been out today doing a "Career Day" at the elementary school (more on that tomorrow). Just catching up on a few comments. Looks like great discussion and a great variety of opinions. I appreciate your comments. I learn from them.
A few of my thoughts:
NB – Excellent comment and opinion.
Matt – You've done mission work and are going back to do more. Isn't it amazingly different how many churches in other countries put very little interest in their buildings. Many meeting in homes.
John, Bob & Brian – They were all cool buildings. I like the one on the post today AND the lego church. How can you not like a Lego church that's called a church of Christ and is plastic. Good point Bob. Maybe the creator was trying to tell us something.
Bob – well thought out.
Monica & Liz – I agree 100% that a building has to be used 24/7. Glad yours is used. If it's not it's a waste. Sadly, church buildings are some of the most under used buildings in the world. But does it need coffee shops, fountians, cafe's, etc (not saying that NRHC does)? But how far do we go? Just a question? Although not really the question on today's post.
Frank – Good point. Does this mean I can sit my backpack on the holy table where commuion is served.
Lisa – Your mom "rocks" in my books.
Jel – Love the "outside" church idea.
As for websites … yea, I'm always turned off by hitting a church's website and the picture on the main page is a building instead of people. BUT that's just me.
I wonder what people who are seeking a church think about going to a web site and seeing a picture of the building? Thom Rainer has done some research on making the building "visitor friendly" while not necessarily making it a "Chrystal Cathedral." I wonder if a picture of the building on the web site gives them a sense of comfort or security because they know what it looks like and what to expect. However, I do agree that we should have pictures of people on the web site for visitors to see when they come to the site.
Anyone with any research to mention on the subject?
this is just me , but big church scare me , make me feel cold!
No research just being where I've been.
A building is the first thing you see in the community. The preacher comes and goes and the members hide pretty good… So the building is the most real identity in a community.
I am doing stateside mission work and we built a building within the first four years. I just spoke to a man who was helping to fund a building overseas and he asked me why don't we just meet in a home?
My answer- same reason you don't start showing movies in your basement before you build the theater or sell groceries out of your kitchen until you get the store built.
Building- Big Deal. No real data- just raw data
BTW: Grew up in the church and got smacked on the back of the head every single time I said "go to church" WHACK "You don't go to church you bring the church with you"…. and I wasn't even a Christian yet
I would like to see the signs posted outside of the buildings changed from….
The Church of Christ
The Church of Christ meets here
I know what you mean about the fountain. I remember when I was in High School we visited RHCC and I thought that fountain seemed like a waste of money. I wondered if there weren't people in the community that could use help. I have to tell you, though, that place has a TON of community outreach. I can't think of one area that is lacking in the outreach department.
To my pleasant surprise that fountain has been gone for sometime. They are in the works of creating an enormous kid play area that could probably be argued the same, but I see the benefit to our kids and since we have so much activity going on down there it gives the adults some peace while meeting.
I enjoyed the comments and discussion on this topic. You may need a part II.
P.S. And yes, we will soon have a coffee shop. Are you an anti-coffee-ite?
Anti-coffee-ite? No way. Love it. Addicted to it. Wish we had a coffee shop. I'd direct-deposit my check there. Will they let you bring it in to church on Sunday's?
As for the fountain … I forgot they had one there. I do love the playground area thought though.
You will have to come visit us sometime when those strict elders in Childress (love you, Dad) let you have a day off so that we can have coffee in church. That would be wierd, Trey in a pew on Sunday morning in fort worth drinking coffee.
Not a complete answer to your question but-
You teach them about God: Father, Son, Spirit.
You show them God.
You promote God.
Then one day individual Christian by individual Christian at various times "wakes up" from their spiritual stupor and they say- Oh, I get it.
That's all I know to do.
I vote for Monalea's suggestion. Perhaps if we preachers made more mention of this fact from the pulpit we could drill it into the hearts and minds of our folks so their actions will match our preaching.
So Don, is the back of your head flat? Thanks for your thoughts on researching this idea.
The reason I preach is to equip the members for ministry so that can built up and go out and minister to someone: neighbor, friends, relatives, co-workers, etc. I feed them hopefully meat so they can grow in their relationship with God so can know Him (not about) but know Him more. Great post brother!
I don't have the answer to this…but nobobdy else satisfied me either….
Being like Jesus..who had no place to lay his head..yet always was surrounded by community…I don't know how!
Don – Your suggestions are excellent. We've just got to keep teaching and preaching.
Bob – I surfed for an answer to the website question. Nothing.
Great thoughts today guys!
Trey, great post. I appreciate your thoughts and your questions. Here is my attempt at a response.
The purpose of the church is the same as that of its builder and sustainer – to seek and save the lost. The reason we are part of the church is because we once were lost but have now been found.
Maintaining focus on who we are, the church, depends on the one for which we live, whether it be for self or for God. If we choose to live for self, my opinion is that church becomes something we attend or go to. But, if we choose to live for God then church becomes more than something we attend, it is who we are. As I have stated in my blog, on several occasions, life is not about me, it is about God.
Focus is a key element in all of this. The type of focus, whether spiritual or worldly, we have determines the view we have concerning things. "Church" becomes a place when our focus is worldly, because worldly people live for self, not for God.
Enough for now. Hope it makes a little sense.
Great discussion. Some of my thoughts:
I agree with John, the building we worshiped at in Phoenix was horribly laid out by one of the members. It had a 5000 seat auditorium and barely room for a 100 in the fellowship hall. It was hardly used during the week at all. There was also an old man that cut out the lights and locked the doors 20 minutes after worship and a parking lot cop that would cuss you out if you tried to talk for long outside.
One of the teen members we became close to was sexually abused in the pews when she was younger. The concept of the building not being the church was a hard but important lesson for her to learn.
One of the members in one of our churches recently said, "A lot of problems would be solved if the building burned down." In my opinion, if a building is keeping you from doing anything then there are alot of things that need to be changed. Mostly inviting God help correct your attitude.
I vote for the part 2 on this.
Also, I have seen NRCC used in many ways.
I also meant to mention that I purposely included the church building in the picture of our house on our blog. It is an extension of our house. We spend lots of time there and people identify us with it. It's part of our home.
I too thought of the AVB song. Was it drilled in our brains or what?
As for the sign saying "The Church of Christ Meets Here", in theory it is good. BUT, it tends to have a connotation that in my experience is legalistic and narrow minded. I'M NOT SAYING ANY OF YOU ARE. It is just the message that sign has conveyed historically.
I am with everyone who has pointed to planning and building with purpose. RHCC is a great example of this historically. I think we church of christ did this though unfortunately. So many were worried about not appearing … and or were self-centered. Everything was thought about but the things that needed to be.
I am not anti-building either. I wish we would really use them. We have no fellowship are for all intent and purpose. We have those classrooms with dividers and a kitchen smaller than any in apartments I've ever seen. We looked at the fesability of building a 'fellowship hall' a few years ago. It was too cost prohibitive at the time and still is. I suggested we take out the pews and carpet the whole 'auditorium' and use it as a multi purpose room. We have a room off it that could easily be converted to a kitchen(it already had water, sewer and electric and room for a kitchen. But we have to have the pews.
I will try to keep from preaching or tune it down but notice the focus. We have to have a room that is used three to four hours out of 168 hours each week. So little time. And we have to dedicate tht space. Why don't we just call it a sanctuary! Our actions betray us.
And what is the point of those fixed seats that are 22 feet long taking up space. We were using our building for something great when we moved here. It was the main polling place in our city. There were three others but it was the main one. Because our classroom/fellowship hall was not big enought they moved. We could have continued having people come in and see we are not going to bite them if we had more sight. …
I know this is way off the subject but I'd love to visit some of these buildings. We visited the Basillica in Mexico City 2 years ago. Wow.
Did you look at the faq on the church of christ site? I especially like one. Why is there an organ? My thought was why is there a narthex?
It is a cool building though. And the Mexico City Basilica is too, but he old church by the zocalo is better to me. There is a chapel that used to be open to the public at times in Fort Worth at approx. Hulen and I 30. My favorite is a chapel carved into the side of a hill outside Sedona Arizona. It is just in the side of the red rocks.
At least the lego girl packed the pews. It looks like a preacher's count.
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Cracking open the taboo subject of the stumbles that can take place in the implementation of research studies, Failing in the Field is a valuable "how-not-to" handbook for conducting fieldwork and running randomized controlled trials in development settings.
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Odoo Help
This community is for beginners and experts willing to share their Odoo knowledge. It's not a forum to discuss ideas, but a knowledge base of questions and their answers.
The automated action doesn`t work
Byon 8/23/16, 5:23 PM • 287 views
I have py script
# -*- coding: utf-8 -*-
from openerp import models, fields, api
from datetime import datetime, date
from openerp.tools.translate import _
class AddPriority(models.Model):
_name = 'account.invoice.priority'
_description = "Descriptions for new priority"
name = fields.Char('Name', size = 26, required=True, help='Name for new priority')
descript = fields.Text( 'Description', help='Descriptions for new priority')
class My_invoices(models.Model):
_inherit = 'account.invoice'
priority = fields.Many2one('account.invoice.priority', string='Priority', required=True, help='Select Priority', store=True)
delay = fields.Integer(string = 'Delay', readonly = True, help = 'Day Delay', compute='_delay', store=True )
def _delay(self):
if self.date_due != False:
day_delay = datetime.strptime(self.date_due, '%Y-%m-%d').date()
day_now = date.today()
day = str(day_delay - day_now)
day = day.replace('0:00:00','')
if 'day' in day:
day = day.replace(' day, ','')
if 'days'in day:
day = day.replace(' days, ','')
if day =='':
day = 0
day = int(day)
self.delay = day
def my_up(self, cr, uid, context= None):
scheduler_line_obj = self.pool.get('account.invoice')
scheduler_line_ids = self.pool.get('account.invoice').search(cr, uid, [])
for scheduler_line_id in scheduler_line_ids :
scheduler_line =scheduler_line_obj.browse(cr, uid,scheduler_line_id ,context=context)
delay = scheduler_line.delay
scheduler_line_obj.write(cr, uid, scheduler_line_id, {'delay': (delay -1)}, context=context)
and xml
<?xml version="1.0" encoding="utf-8"?>
<record id="update_date_action" model="ir.cron">
<field name="name">Date for invoice priority</field>
<field name="user_id" ref="base.user_root"/>
<field name="interval_number">1</field>
<field name="interval_type">minutes</field>
<field name="numbercall">-1</field>
<field eval="False" name="doall"/>
<field eval="'My_invoices'" name="model"/>
<field eval="'my_up'" name="function"/>
Cron was created but dont work. Why does nothing happen? where is my mistake?
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|Asked: 8/23/16, 5:23 PM
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|Last updated: 8/24/16, 2:17 AM


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July 21, 2008
UNITED STATES OF AMERICA,v.DARRYL JOE, DEFENDANT.
The defendant, Darryl Joe ("Joe", or "Defendant"), is charged by superseding indictment with four counts: being a previously-convicted felon in possession of a firearm and ammunition, in violation 18 U.S.C. § 922(g)(1) ("Count One"); possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. § 5861(d) ("Count Two"); carjacking, in violation of 18 U.S.C. § 2119(1) ("Count Three"); and brandishing a firearm- and aiding and abetting the brandishing of a firearm-during and in relation to a federal crime of violence, in violation of 18 U.S.C. §§ 924(c) and 2 ("Count Four"). Trial is scheduled to begin on July 22, 2008.
Before the Court is the Government's request for pretrial rulings on the admissibility of certain evidence. The Government seeks rulings: (1) that it may introduce evidence of the facts underlying Joe's 2003 felony conviction for possession of a loaded firearm, pursuant to Federal Rule of Evidence 404(b); (2) that it may cross-examine Joe about this prior conviction if he testifies, pursuant to Federal Rule of Evidence 609(a)(1); (3) that the defense may not cross-examine the victim, Michael Hargrove ("Hargrove", or the "Victim"), about certain prior offenses; and (4) that the defense may not elicit evidence of Joe's acquittal on a felon-in-possession charge in the Southern District of New York in 2007.
The Government made these requests in a letter dated March 3, 2008 ("Govt.'s Letter").*fn1 At a conference held on June 19, 2008, Joe's former court-appointed attorney moved to be relieved as counsel. The motion was granted and Kelly Sharkey, Esq., was appointed as new counsel. Ms. Sharkey submitted a letter in response to the Government's requests on July 9, 2008 ("Def.'s Letter").
The Government hopes to prove at trial the following, along with other facts.
On or about July 14, 2007, two armed men-one carrying a pistol and the other a shotgun-stole a car from the Victim at gunpoint. The Victim called 911 to report the carjacking. Shortly thereafter, a police officer saw the Victim's car being driven by a man, alleged to be the Defendant, matching the description of one of the suspects.
After the police drove behind the Victim's car, the Defendant stopped the car, jumped out and ran into a building. At that time, the Defendant was wearing a blue striped shirt. A police officer secured the Victim's car and saw a bag on the floor in the back of the car with a shotgun sticking out of it.
The bag turned out to contain a sawed-off Remington shotgun and several rounds of shotgun ammunition.
Police officers entered the building and found the Defendant, out of breath and sweating, in the hallway of one of the floors. The Defendant was unable to explain his presence in the building satisfactorily. When the Defendant was brought outside, police officers identified him as the man they had seen run from the Victim's car into the building. At this time, the Defendant was wearing a white undershirt. Police officers found a blue striped shirt on the ground below a stairwell window inside the building in which they had just found the Defendant. Later, at the police station, the Victim identified the Defendant as one of the men who stole the Victim's car at gunpoint.
A.Rule 404(b) Evidence of Defendant's Prior Possession of Firearms
Under Rule 404(b), evidence of uncharged acts is not admissible merely to prove the defendant's character or propensity, but is admissible for any other relevant purpose, such as to show "preparation, plan, knowledge, identity, or absence of mistake or accident" where those issues are in dispute. Even if admissible under Rule 404(b), the evidence is subject to a Rule 403 balancing test and must be excluded if its probative value is "substantially outweighed by the danger of unfair prejudice." Fed. R. Evid. 403; United States v. Paulino, 445 F.3d 211, 221 (2d Cir. 2006) (stating that the Second Circuit "has long held an inclusionary approach" to uncharged acts evidence).
The Government has offered to prove at trial that, on July 27, 2003, Joe possessed a loaded 9mm Interarms model firearm in the vicinity of 1223 Boston Post Road in the Bronx, which is near where Joe allegedly possessed the shotgun in the instant case. The Government would further prove that Joe threw to the ground a black bag containing the firearm and ran away after being observed by an NYPD officer.*fn2
The Government conditions its proffer on Joe raising certain defenses at trial, either in his opening statement, on cross-examination or through the presentation of evidence. These defenses are the following: "[1] that [the Defendant] did not possess a firearm on July 14, 2007; [2] that whatever the Victim saw the Defendant carry, or saw the Defendant's cohort carry, was not a gun; and [3] that the gun recovered from the Victim's car was not the Defendant's gun or was not the Defendant's cohort's gun, placed in the Defendant's possession." (Govt.'s Letter at 3). The Government contends that these defenses would place in dispute Joe's knowledge, intent and lack of mistake or accident with respect to the charged gun possession, making his prior possession relevant to prove these issues.
The first defense-denial of the gun possession-would not place Joe's intent, knowledge, or lack of mistake or accident into dispute. The Government asserts that, because the gun possession charge requires proof of knowledge and intent, Joe's claim that he did not possess the gun would bring these topics in issue. But the Second Circuit has "recognized a distinction between defense theories that claim that a defendant did not do the charged act at all, and those that claim that the defendant did the act innocently or mistakenly, with only the latter truly raising a disputed issue of intent." United States v. Colon, 880 F.2d 650, 657 (2d Cir. 1989); United States v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988) (stating that "intent is not placed in issue by a defense that the defendant did not do the charged act at all").
The second anticipated defense-that the Victim did not really see Joe or his alleged cohort carry a gun-would place only the Victim's knowledge of Joe's gun possession in dispute.
It would not open the door for Rule 404(b) evidence to prove Joe's knowledge or intent.
The third defense-that the gun recovered from the Victim's car did not belong to Joe-may or may not place his knowledge, intent, or lack of mistake or accident into dispute. If Joe claims that he was never in the Victim's car, so that the shotgun could not have been in his possession, then his knowledge or intent with respect to possessing the shotgun is not in issue. On the other hand, if Joe's defense implies that he was in the Victim's car but did not know or intend for the shotgun to be in his constructive possession, then evidence of his prior gun possession will be admissible to prove his knowledge, intent, and lack of mistake or accident. See United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993) ("Where a defendant claims that his conduct has an innocent explanation, prior act evidence is generally admissible to prove that the defendant acted with the state of mind necessary to commit the offense charged."); United States v. Brown, 961 F.2d 1039, 1042 (2d Cir. 1992) (where defendant claimed that the illegal machine gun found in his apartment belonged to others who had access to the apartment, evidence of other firearms found in his apartment and truck was admissible to establish his knowledge and the absence of mistake or accident with respect to the presence of the machine gun).
Because the relevance of the 2003 gun possession to Joe's knowledge or intent depends upon the defense theory, the Court will reserve decision on the third possible defense until trial. "As a general rule, the offer of evidence to prove the defendant's intent or knowledge should await the conclusion of the defendant's case" unless it is apparent from the beginning that intent will be in dispute. United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1992).
B.Cross-Examination of Defendant About his Prior Conviction for Firearms Possession
The Government also wishes to cross-examine Joe about his 2003 felony conviction for firearms possession if he takes the stand, in order to attack his character for truthfulness pursuant to Federal Rule of Evidence 609(a)(1). That rule permits the impeachment of a defendant witness with evidence of a prior felony conviction if "the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused," provided that the conviction is no more than ten years old. Fed. R. Evid. 609(a)(1) & (b).
Defendant argues that the Government should only be permitted to cross-examine him about the fact of his prior conviction, which already will be in evidence by stipulation. See supra n.2. Further questioning about the details of the conviction and the facts underlying it would cause unfair prejudice, Joe asserts, because the jury may infer from his prior firearms possession a propensity to commit firearms offenses.
The Second Circuit has held that "while it may be proper to limit, under Rule 609(a)(1), evidence of the underlying facts or details of a crime of which a witness was convicted, inquiry into the 'essential facts' of the conviction, including the nature or statutory name of each offense, its date, and the sentence imposed is presumptively required by the Rule, subject to [probative-prejudice] balancing." United States v. Estrada, 430 F.3d 606, 616 (2d Cir. 2005). Therefore, district courts must "undertake an individualized balancing analysis under Rule 609(a)(1) before excluding evidence of the statutory name of a witness's crime . . . [M]any factors are relevant to a district court's exercise of discretion under Rule 609(a)(1), prime among them being whether the crime, by its nature, is probative of a lack of veracity." Id. at 616-17 (internal quotation marks and brackets omitted).
I find that the fact of Joe's prior felony conviction, its date, and the sentence imposed are probative of his lack of respect for the law and credibility. The prejudicial effect of this evidence will be minimal because the jury will already know, by stipulation, that he had been convicted of a felony before his arrest in the instant case.
However, unlawful possession of a firearm does not "rest on dishonest conduct" and is not very probative of an untruthful character. See Estrada, 430 F.3d at 617-618 (distinguishing "between crimes that reflect adversely on a person's integrity, and which therefore bear on honesty-such as those involving deceit, fraud, and theft-and acts of violence, 'which may result from a short temper, a combative nature, extreme provocation, or other causes, [and] generally have little or no direct bearing on honesty and veracity.'"). Allowing the jury to know the statutory name of the offense would add little to their assessment of Joe's credibility. At the same time, this detail poses a danger of unfair prejudice. Because the prior conviction for firearms possession is nearly identical to the conduct charged in Count One, the jury may infer unfairly that Defendant has a propensity to commit firearms offenses.
Therefore, the Government is restricted to inquiring about the date of the prior conviction and the sentence imposed. The Government may not inquire into the statutory name of the offense or the facts underlying the conviction, unless those details should come in independently, for example through Rule 404(b) as set forth supra at pp. 7-8.
C. Cross-Examination of the Victim About Prior Offenses
The Government seeks a ruling that would preclude the defense from cross-examining Hargrove about certain prior offenses. The defense states that it may wish to cross-examine Hargrove pursuant to Rules 404(b) and 609(a)(1) about the following: a 1993 conviction for possession of crack/cocaine in the seventh degree, which occurred within blocks of the alleged carjacking; a 1994 assault upon a police officer which resulted in a plea to disorderly conduct and a fine; and a 2004 arrest for a drug sale, occurring at the same location as the alleged carjacking, which resulted in a plea to disorderly conduct and a one-year conditional discharge. Defendant has also requested additional time to develop a justification to cross-examine Hargrove on these topics.
Cross-examination on these prior offenses will not be permitted pursuant to Rule 609. The 1993 drug possession conviction is outside the ten-year time limit, and its probative value for the victim's truthfulness does not "substantially outweigh" its prejudicial effect. See Fed. R. Evid. 609(b). The 1994 assault and 2004 drug sale resulted in pleas to disorderly conduct, which is not a crime under New York law and is not punishable by imprisonment in excess of one year, see N.Y Penal Law §§ 10.00(6), 240.20 & Sent. Chart VII, nor does it involve dishonesty or false statements. See Fed. R. Evid. 609(a)(1)&(2).
If the Defendant will seek to cross-examine Hargrove about these prior offenses pursuant to Rule 404(b) or some other rule, he must inform the Court and the Government before opening statements and set forth the new basis for such request.
D. Evidence of Defendant's 2007 acquittal
Finally, the Government requests that Defendant be precluded from introducing evidence of his jury acquittal of a felon in possession charge in the Southern District of New York in 2007. Defendant indicates that he does not presently intend to offer his judgment of acquittal into evidence; therefore no ruling is required at this time. The Defendant also has informed the Court that law enforcement personnel who will testify in the instant case may have been involved in that prior case. If so, the Defendant will notify the Court whether he seeks to cross-examine those witnesses about the prior case, and the Court will rule on the permissibility of such inquiry at that time.
This constitutes the Court's ruling on the Government's request for in limine rulings.
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