Chery v. Cunningham

Background

Lyxon Chery was tried and convicted by a jury in New York Supreme Court, New York County, of first-degree robbery and two counts of second-degree robbery. New York’s Appellate Division, First Department, affirmed the convictions, and the New York Court of Appeals later affirmed that decision.

Chery, representing himself, filed a petition under 28 U.S.C. § 2254, the federal law allowing a state prisoner to challenge a conviction in federal court. When he filed the petition, he was incarcerated at Fishkill Correctional Facility. He later received a final order of removal to Haiti, but his removal was stayed while he appealed that order. At the time of this opinion, he was in the custody of U.S. Immigration and Customs Enforcement at the Buffalo Federal Detention Facility. Because he had not been deported, the court declined to address the magistrate judge’s conclusion concerning whether the petition had become moot.

The petition was referred to Magistrate Judge Debra Freeman, who recommended dismissing it. Chery objected, repeating arguments from his state-court filings and asserting violations of the Fifth and Fourteenth Amendments. Judge Castel conducted a fresh review of the petition and its legal and factual claims.

Claims and analysis

The court understood the petition to raise three claims:

1. Cross-examination about omissions from a statement to police. During trial, an officer testified that Chery said the robbery victim kicked his bicycle and asked why the victim was not also going to jail. Chery testified that the victim had started an altercation by hitting him with a wooden board and that he had seen the victim throw two teenagers out of a store. The prosecution was allowed to question Chery about his failure to include those facts in his statement to the officer. The state courts treated the statement as spontaneous and voluntary because it was made before Miranda warnings and was not the product of questioning.

The magistrate judge concluded that part of this claim was procedurally defaulted because the state court’s decision rested on independent and adequate state-law grounds. Judge Castel stated that, regardless of whether that procedural-default conclusion was correct, the claim failed on the merits. The court held that cross-examining Chery about omissions from a voluntary, spontaneous statement did not violate his constitutional rights.

2. Missing-witness instruction. Chery argued that the trial court should have instructed the jury regarding Officer Tunis, a responding officer who did not testify. The court considered both New York law and the federal constitutional standard. It agreed that the trial court acted within its discretion in refusing the instruction and that the refusal did not deprive Chery of a fair trial.

3. Sufficiency of the evidence of physical injury. Chery argued that the prosecution had not presented legally sufficient evidence that the robbery victim suffered the “physical injury” required for second-degree robbery under New York Penal Law § 160.10(2)(a). The magistrate judge concluded that Chery had not shown a basis for federal habeas relief. The recommendation identified trial testimony that could support a finding of the required injury and, viewing the evidence in the prosecution’s favor, concluded that the victim suffered physical injury. Judge Castel adopted that conclusion. In a footnote, the court also stated that Chery had failed to exhaust this claim in state court because he raised it in the Appellate Division but did not present it to the New York Court of Appeals.

Disposition

Judge Castel adopted the magistrate judge’s ultimate conclusion and denied Chery’s petition under 28 U.S.C. § 2254. The Clerk was directed to close the case and enter judgment for the respondent.

The court found that Chery had not made a substantial showing that a constitutional right was denied, so it directed that no certificate of appealability issue. It also certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees.