Opinion
No. 02 Civ. 7633 (HB)(KNF).
July 19, 2004
TO THE HONORABLE HAROLD BAER, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Petitioner Ernest Williams ("Williams") has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Williams contends that his confinement by the state of New York is unconstitutional because the evidence submitted at his trial was insufficient for a jury to find him criminally culpable for robbery in the second degree. He maintains that the judgment of conviction must be modified to robbery in the third degree. The respondent opposes Williams' application for a writ of habeas corpus. He contends that Williams' claim is procedurally barred and, in any event, lacks merit.
II. BACKGROUND
On May 25, 1999, Williams entered the Manhattan office of an octogenarian semi-retired attorney. Williams was carrying envelopes and mentioned several names to the attorney. Williams was advised that none of the named persons was associated with the attorney's office. Williams handed the attorney a slip of paper that contained a woman's name and a telephone number. Williams was asked to leave the attorney's office. He did not. Instead, Williams placed the attorney in a choke hold that caused him to lose consciousness for several minutes. Williams relieved the attorney of the cash that was in the attorney's pants pocket. When the attorney regained consciousness and discovered that he had been robbed, he dialed the telephone number that appeared on the slip of paper Williams had given to him earlier. The telephone number was assigned to the home of Williams' former girlfriend. The robbery victim made two telephone calls to Williams' former girlfriend. During the second telephone call, he persuaded her to contact security personnel at the building where his law office was located. When Williams' former girlfriend did so, she was connected to the New York City Police Department to whom she reported the robbery on the victim's behalf.
Williams was apprehended and was later indicted by a New York County grand jury. Williams proceeded to trial before a petit jury. During the trial, the jury heard testimony from James Gill, M.D., Associate Medical Examiner for the City of New York. Dr. Gill testified on behalf of the prosecution. The prosecution elicited uncontroverted testimony from Dr. Gill concerning the physiological effect on the human body when a person loses consciousness. Dr. Gill informed the jury that:
Losing consciousness is also known as passing-out, and it can be due to a lot of different things, but the ultimate problem is the brain not getting enough oxygen. And when your brain senses that, it kind of shuts down all of your voluntary systems and you pass out.
Under New York law, a person commits robbery in the second degree when the person forcibly steals property and "[i]n the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (a) [c]auses physical injury to any person who is not a participant in the crime. . . ." New York Penal Law § 160.10. New York's Penal Law explains that physical injury "means impairment of physical condition or substantial pain." New York Penal Law § 10.00(9).
The jury returned a verdict convicting Williams for robbery in the second degree.
Following his conviction, Williams appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. He urged that court to reduce the conviction he suffered for robbery in the second degree to robbery in the third degree. Williams argued that the evidence presented to the jury was legally insufficient to establish the crime of robbery in the second degree because the victim did not suffer either a physical impairment or substantial pain.
For its part, the prosecution asked the Appellate Division to deny Williams' request for relief because he had failed to preserve his claim of insufficient evidence for that court's review. The prosecution noted that Williams' attorney had made only a general protest at the close of the prosecution's case, when he asked the trial court to issue a trial order of dismissal because the prosecution had "failed to prove the case beyond a reasonable doubt and there is not sufficient [evidence] [to] submit the case to the jury." The prosecution claimed that, without greater specificity, the protest raised by Williams' counsel did not alert the trial court to the precise theory under which he believed the evidence was wanting. Therefore, according to the prosecution, the claim of insufficient evidence was not preserved for appellate review.
The Appellate Division agreed with the prosecution. It found that Williams' challenge to the sufficiency of the evidence supporting the physical injury element of the offense robbery in the second degree "[was] unpreserved" for appellate review. Notwithstanding that determination, the court noted that if it reviewed the substance of Williams' claim it would find that, by choking the robbery victim and causing him to lose consciousness, Williams inflicted physical injury on the victim. See People v. Williams, 294 A.D.2d 312-313, 742 N.Y.S.2d 544 (App.Div. 1st Dep't 2002). Williams applied for leave to appeal from the decision of the Appellate Division to the New York Court of Appeals. That application was denied by an associate judge of that court on July 25, 2002. See People v. Williams, 98 N.Y.2d 703, 747 N.Y.S.2d 423 (2002). The instant application for a writ of habeas corpus was made shortly thereafter.
Williams contends that he is entitled to the relief he seeks, through the application for a writ of habeas corpus, because the evidence presented at his trial by the prosecution did not establish that the robbery victim suffered a physical injury, specifically, substantial pain. Therefore, according to Williams, the jury could not find him criminally culpable for the crime robbery in the second degree.
III. DISCUSSION
A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 So. Ct. 2546, 2553-54 (1991). This proscription applies even in those circumstances where a state court expressly relies on a procedural default as an independent and adequate state law ground but, nevertheless, has ruled in the alternative on the merits of the federal claim. See Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). However, a habeas corpus petitioner may bypass the independent and adequate state law ground by showing cause for the default and prejudice attributable thereto or by demonstrating that a fundamental miscarriage of justice will attend (that is, that the petitioner is actually innocent of the crime for which he was convicted), if the claim is not reviewed by the habeas court.See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989).
The Appellate Division did not dispose of the petitioner's claim, that insufficient evidence supporting the element of physical injury was presented at his trial by the prosecution, on the merits. It found that the petitioner had failed to preserve that issue for appellate review as is required by New York Law. However, the court did note, alternatively, that the claim lacked merit.
In most cases, a state procedural bar constitutes an adequate and independent state law ground that is sufficient to preclude federal habeas corpus review. "In exceptional cases, however, an exorbitant application of a generally sound rule may affect the adequacy and independence of the state procedural ground, and allow the United States district court to consider the merits of a constitutional claim." Rosa v. Herbert, 277 F. Supp.2d 342, 351 (S.D.N.Y. 2003) (quoting Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 885); see also Bell v. Poole, No. 00 Civ. 5214, 2003 WL 21244625, at *9 (E.D.N.Y. Apr. 10, 2003) ("The mere invocation of a procedural bar does not . . . automatically preclude review in this court.").
The Second Circuit Court of Appeals has stated that a procedural bar is adequate to support a state court judgment only if it is based on a rule that is "firmly established and regularly followed" by the state in question. Cotto v. Herbert, 331 F.3d 217, 239-41 (2d Cir. 2003); see also Garcia v. Portuondo, No. 03 Civ. 2458, 2003 WL 22510390, at *4-5 (S.D.N.Y. Nov. 4, 2003). Thus, the parties to an action must have notice of the state procedural rule and the rule must be applied consistently in similar circumstances. See Bell, 2003 WL 21244625, at *9. Furthermore, a state procedural rule must serve a legitimate state interest. See Rosa, 277 F. Supp.2d at 351; Smart v. Scully, 787 F.2d 816, 820 (2d Cir. 1986). However, "the adequacy of a state procedural bar is determined with reference to the particular application of the rule; it is not enough that the rule generally serves a legitimate state interest." Cotto, 331 F.3d at 240 (quoting Lee, 534 U.S. at 387, 122 S.Ct. at 891(internal quotation marks omitted). Therefore, an inquiry into whether the application of a procedural rule is "firmly established and regularly followed" in the specific circumstances presented in a case includes "an evaluation of the asserted state interest in applying the procedural rule in such circumstances."Id.
New York's Criminal Procedure Law ("CPL") § 470.05, in its most pertinent part, provides that:
* * *
For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an "exception" but is sufficient if the party made his position with respect to the ruling or instruction known to the court. . . .
CPL § 470.05(2) (emphasis added). The purpose of the rule is "to fairly apprise the court and the opposing party of the nature and scope of the matter contested." People v. Jones, 81 A.D.2d 22, 41-42, 440 N.Y.S.2d 248, 261 (App.Div.2d Dep't 1981).
In New York, a general motion to dismiss an indictment, at the close of the prosecution's case, without citation to any specific evidentiary deficiencies, is inadequate to preserve, for appellate review, a claim that the evidence was legally insufficient to support a criminal conviction. See People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 175 (1995) (citingPeople v. Cona, 49 N.Y.2d 26, 33 n. 2, 424 N.Y.S.2d 146, 148 n. 2 [1979]) (motion to dismiss for insufficient evidence must be specifically directed to the alleged error); People v. Woodley, 178 A.D.2d 626, 578 N.Y.S.2d 851 (App.Div.2d Dep't 1991) (motion to dismiss for failure of prosecution to prove prima facie case not sufficiently specific); People v. Johnson, 185 A.D.2d 247, 586 N.Y.S.2d 136, 137 (App.Div.2d Dep't 1992) (motion to dismiss for failure of prosecution to prove prima facie case not sufficiently specific); People v. Neptune, 235 A.D.2d 502, 652 N.Y.S.2d 991 (App.Div.2d Dep't 1997) (motion to dismiss for failure of prosecution to prove prima facie case not sufficiently specific); People v. James, 254 A.D.2d 371, 678 N.Y.S.2d 731 (App.Div.2d Dep't 1998) (motion for trial order of dismissal for failure of prosecution to prove prima facie case not sufficiently specific); People v. Malloy, 262 A.D.2d 798, 799, 693 N.Y.S.2d 252, 253 (App.Div.3d Dep't 1999) (general motion to dismiss not sufficiently specific to preserve claim of legal insufficiency for appellate review).
In the case at bar, Williams' trial counsel made a general motion for a trial order of dismissal at the close of the prosecution's case, saying:
Judge for the record, I would like to make [a] motion at the end of the People's case and at the end of the entire case, that the People have failed to prove the case beyond a reasonable doubt and there is not sufficient evidence [to] submit the case to the jury and I ask for a trial order of dismissal at this time.
The court then invited Williams' trial counsel to elaborate on the basis for his motion and counsel declined the invitation. Now, petitioner contends that the basis for the motion was, and remains, his contention that the prosecution failed to establish that the robbery victim suffered substantial pain. However, as noted above, the physical injury element of the charge of robbery in the second degree may be established by showing that the robbery victim suffered either substantial pain or an impairment of a physical condition. Since Williams' trial counsel declined the invitation from the trial court to elaborate on his general motion that the evidence presented was insufficient to find Williams guilty for the crime of robbery in the second degree, he failed to alert the trial court with the requisite specificity, dictated by New York law, that it was the substantial pain theory of the physical injury element of the crime that Williams was challenging and not the impairment of physical condition theory. Given that physical injury has multiple meanings and that the jury heard uncontroverted testimony from a physician that losing consciousness from a choke hold means that the brain of the person who has been choked has not received sufficient oxygen and, furthermore, that in such a circumstance the brain senses this, and causes the body's voluntary systems to shut down, the trial court might reasonably have concluded that it was being asked by the petitioner to assess the sufficiency of the evidence with respect to either or both theories of physical injury.
Thus, it would not have been reasonable for the petitioner to conclude that the court recognized that his general motion was intended to have it assess only whether sufficient evidence was presented on the issue of substantial pain, as he now claims. Therefore, it was incumbent upon Williams and his trial counsel to alert the trial court to the specific deficiency(ies) in the evidence presented by the prosecution which warranted the court in granting the motion for a trial order of dismissal so that an appellate court would not be left to speculate on the basis for which the motion for a trial order of dismissal was made.
Based upon the New York cases cited above, and the relevant provision of the CPL, the Court finds that the application of the procedural rule relied upon by the Appellate Division, that in order to preserve for appellate review a claim that a conviction rests on legally insufficient evidence, a criminal defendant may not make a general motion to dismiss the indictment at the close of the prosecutor's case or at the close of all the evidence, but must make a sufficiently specific motion that alerts the trial court to the particular evidentiary deficiency(ies) in the prosecution's case, is and, at the time of Williams' trial, was firmly established and regularly followed.
The Court finds, further, that New York has a legitimate interest in applying this procedural rule because it promotes the efficient and effective administration of justice by ensuring that an appellate court will neither have to speculate about the error the defendant claims occurred during a criminal trial nor parse the trial record in search of the alleged error to which the defendant failed to direct the trial court's attention with specificity. Therefore, the Appellate Division's decision to apply the New York rule requiring specificity on a motion for a trial order of dismissal premised on a claim of legally insufficient evidence, rests on a state law that is independent of Williams' federal claim and is an adequate basis upon which to deny federal habeas corpus review unless the petitioner can show cause for his procedural default in the state court and prejudice attributable to his failure to make his motion with specificity or that he is actually innocent. See Harris v. Reed, supra. Here, the petitioner has not shown cause for his procedural default and he does not allege that he is actually innocent. Accordingly, he is not entitled to the habeas corpus relief he seeks.
IV. RECOMMENDATION
For the reasons set forth above, petitioner's application for a writ of habeas corpus should be denied.V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Harold Baer, 500 Pearl Street, Room 2230, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Baer. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).