    10-3094-pr
    Munford v. Graham

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 13th day of March, two thousand twelve.

    PRESENT:
                PIERRE N. LEVAL,
                ROBERT D. SACK,
                PETER W. HALL,
                      Circuit Judges.
    _______________________________________

    CURTIS MUNFORD,
              Petitioner-Appellant,

                        v.                                   10-3094-pr

    HAROLD GRAHAM,
                Respondent-Appellee.
    ______________________________________


    FOR APPELLANT:              Rajesh S. James, Davis Polk & Wardwell LLP, New York, New
                                York

    FOR APPELLEE:               Priscilla Steward, Assistant Attorney General (Barbara D.
                                Underwood, Solicitor General, Roseann B. MacKechnie, Deputy
                                Solicitor General for Criminal Matters, of counsel) for, Eric T.
                                Schneiderman, Attorney General of the State of New York, New
                                York, New York.
       Appeal from the United States District Court for the Southern District of New York

(Cote, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Petitioner-Appellant Curtis Munford appeals from a judgment of the district court

denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Munford

challenges his state conviction based on certain evidence he alleges to be the fruit of an unlawful

arrest and the improper introduction of a nontestifying co-defendant’s guilty plea. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal, and we discuss these only where necessary to explain our decision.

       Recognizing that his Fourth Amendment claim must be analyzed under Stone v. Powell,

428 U.S. 465 (1976), Munford argues that an “unconscionable breakdown” occurred, Capellan v.

Riley, 975 F.2d 67, 70 (2d Cir. 1992), in New York’s trial and appellate courts that deprived him

of an “an opportunity for full and fair litigation of [his] Fourth Amendment” claims. Stone, 428

U.S. at 482. Specifically, he argues that the trial court irrationally refused to view a surveillance

video and arrest photo or allow cross-examination of Detective Joseph Monahan about the

quality of the video. The Appellate Division, he claims, further compounded the error by

affirming the probable cause determination on the basis of a factual theory the prosecution

advanced for the first time on appeal. Munford’s arguments are rejected. These allegations

cannot constitute an “unconscionable breakdown” in New York’s procedures because, under

New York law, a trial court acts within its discretion in deciding not to view a surveillance video

when the record before it was more than adequate to establish probable cause. See People v.

Clarkson, 292 A.D.2d 207, 208 (1st Dep’t 2002); see also People v. Sioba, 187 A.D.2d 317, 317


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(1st Dep’t 1992). Here, probable cause was adequately demonstrated by the other information

available to Detective Monahan. This included an informant’s identification of Munford,

Reberto Grant, and others as the robbers and his statement that he had held the gun taken during

the robbery; another tipster’s claim that Grant was on parole, confessed to the robbery, and

showed him the booty of the heist; and finally the independent police investigation which

revealed that Grant and Munford were known associates who had been arrested for a similar

robbery together six years earlier. There is no basis to hold that Munford’s Fourth Amendment

rights were not adequately protected. The judgement of the district court in this regard is

affirmed.

       The parties are in agreement that the admission of Grant’s certificate of conviction

violated Munford’s rights under the Confrontation Clause. In analyzing this issue, however, we

may “overturn a state conviction only when the constitutional violation ‘had substantial and

injurious effect or influence in determining the jury’s verdict.’” Wood v. Ercole, 644 F.3d 83, 94

(2d Cir. 2011) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). “In assessing

whether the erroneous admission of evidence had a substantial and injurious effect on the jury’s

decision, we consider the importance of the . . . wrongly admitted evidence, and the overall

strength of the prosecution’s case. The importance of wrongly admitted evidence is determined

by the prosecutor’s conduct with respect to the . . . evidence, whether the evidence bore on an

issue plainly critical to the jury’s decision, and whether it was material to the establishment of

the critical fact, or whether it was instead corroborated and cumulative[.]” Wood, 644 F.3d at 94

(internal citations, brackets, and quotation marks omitted). Evidence is not cumulative or

corroborative if the “erroneously admitted evidence ‘filled . . . a missing link’ in the


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government’s case.” Id. at 98 (quoting Zappulla v. New York, 391 F.3d 462, 472 (2d Cir. 2004)).

“The strength of the prosecution’s case, absent the erroneously admitted evidence, is probably

the single most critical factor in determining whether the error was harmless.” Id. at 94.

       The first factor, the strength of the prosecutor’s case, favors the government. Not

counting the improperly admitted evidence, the prosecutor introduced more than sufficient

evidence to prove Munford’s participation in the charged robbery. The case included an eye

witness, Jack Prunty, who identified Munford and Grant as the men he encountered the morning

of the robbery. Both Prunty and another witness identified the clothing found in Munford’s

apartment as the clothing worn by one of the assailants. The prosecution played the surveillance

video to let the jury determine if the clothing found in Munford’s apartment matched that worn

by one the robbers. The prosecution’s case consisted of additional circumstantial evidence,

including cell phone records from which the jury could infer that Munford communicated with

Grant in close proximity to the jewelry store minutes before the robbery and evidence of their

past commission of a similar robbery in 1998. None of the prosecution’s witnesses were

impeached in any meaningful way. We have no reason to believe, therefore, that the jury would

not credit their testimony. Having conducted an independent review of the record, we cannot

say that the prosecution’s case was “weak” without the improperly admitted evidence. See

Zappulla, 391 F.3d at 468-69 (concluding that a case is weak in light of contradictory and

conflicting testimony).

       Turning to the importance of the evidence, we have little difficulty concluding that

Grant’s guilt, admitted to be “highly probative” of Munford’s identity, bore on an issue critical

to the jury’s determination of Munford’s guilt. We also note that the prosecutor did not shy


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away from using Grant’s guilt to bolster other evidence. We hold, however, that Grant’s

conviction did not provide the “missing link” to a critical fact—Munford’s identity; rather it was

cumulative or corroborative. See Wood, 644 F.3d at 98. The security guard, Prunty, had already

identified both Grant and Munford as among the men who robbed the jewelry store. As noted,

the prosecution also introduced evidence from cell phone records linking the men to the robbery

and evidence that they had committed a similar-styled robbery together. Evidence of Grant’s

conviction based on his guilty plea served at most to corroborate the evidence that proved

Munford’s identity as one of the perpetrators of the robbery. Given the strength of the

prosecution’s case, we do not find ourselves “in virtual equipoise as to the harmlessness of the

error,” O’Neal v. McAninch, 513 U.S. 432, 435 (1995), of introducing Grant’s conviction for the

robbery at issue. We conclude, therefore, that the error did not have the substantial and injurious

effect or influence on the jury’s verdict that would require us to vacate Munford’s conviction.

       We have considered Munford’s remaining argument and find them without merit.

Accordingly, the judgment of the district court is AFFIRMED.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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