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July 2, 1985

EDUARDO ORTIZ, Petitioner,
RAMON RODRIGUEZ, Chairman of the New York State Board of Parole, Respondent JOSE FLORES RODRIGUEZ, Petitioner, vs. CHARLES SCULLY, Superintendent of Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: KEENAN


JOHN F. KEENAN, United States District Judge:

 Before the Court are two separate petitions for writs of habeas corpus brought by two New York State prisoners, Eduardo Ortiz and Jose Flores Rodriguez, against the Wardens of the prisons in which the petitioners are respectively incarcerated. The petitioners are both serving sentences on robbery convictions. Both Ortiz and Rodriguez ("the petitioners") base their arguments in support of their petitions on the alleged unconstitutionality of New York state's affirmative defense of duress, as set forth in Section 40.00 of the New York Penal Law. ("§ 40.00".) Petitioners assert that § 40.00 in effect shifts the burden of proof on a criminal charge to a defendant, by requiring the defendant to negate the intent element of robbery. Petitioners contend that such burden-shifting is unconstitutional because it removes intent from the elements of a criminal charge to be proved by the prosecutor beyond a reasonable doubt. Thus, the Court must determine whether under New York law the duress defense negates intent. According to Petitioners, if duress precludes intent, then the requirement that a defendant establish that he committed a crime while acting under duress necessarily entails a showing by a defendant of the lack of intent. Since intent is an element of the crime, the burden of proof on duress cannot, Petitioners claim, constitutionally be placed on a defendant.

 However, if the Court determines that a party acting under duress can nevertheless have the requisite intent for the crime of robbery, then the New York statutory scheme is constitutional. This Court finds that the New York defense of duress does not negate the intent aspect of robbery.

 The New York statute which places on a defendant the burden of establishing duress does not constitutionally require a defendant to disprove an element of the crime charged. Accordingly, the petitions for writ of habeas corpus are denied.


 (A) Petitioner Ortiz.

 Ortiz was indicted in New York County and charged with two counts of robbery in the first degree and two counts of robbery in the second degree. All of the charges stemmed from a September 1980 incident at "Pants & Things," a retail clothing store located at 201 West 28th Street. At trial, the evidence showed that the store was held up by two men armed with guns. Petitioner Ortiz entered the store after the gunmen. He tied up the store's manager and its co-owner. After the two gunmen took money from the store's personnel, they left the store. Petitioner Ortiz left the store as well. After a chase by the police, Ortiz was arrested. The two gunmen were not apprehended.

 Ortiz testified at trial that he was threatened by the two gunmen, and assisted them only under duress. Defense counsel argued by bench conferences that § 40.00, requiring the defense to prove duress by a preponderance of the evidence, unconstitutionally shifted the burden of proof on intent to the defendant. Defense counsel opposed giving a jury instruction on duress for this reason. Counsel instead proposed a charge placing the burden of proving intent on the prosecution. The prosecution, in turn, argued that Ortiz' coercion evidence fell directly within the statutory definition of duress, and that a jury charge on duress was therefore appropriate. The prosecutor requested a charge instructing the jury that evidence of coercion or duress did not negate evidence of intent, an element of the crime charged.

 The trial court agreed to refrain from submitting a duress instruction to the jury, on the condition that defense counsel avoid using the duress argument in summation. Defense counsel complied with this condition. In summation, defense counsel urged Ortiz' lack of intent as indicated by a variety of circumstantial factors. The prosecutor's summation also focused on whether Ortiz had formulated the necessary intent, mentioning, over defense counsel's objection, that "it is a defense that (Ortiz) acted because of threats." (Transcript at 413). The court's charge emphasized intent, and omitted reference to the legal status or probative value of Ortiz' duress evidence. The court did not address the issue of the burden of proof with respect to such evidence. Thus, Ortiz did not present the duress argument in the course of his trial, nor was the jury charged on this issue.

 The jury found Ortiz guilty on all counts. The court sentenced Ortiz to a 2 to 6 year prison term for each of the first degree robbery counts, and a 1-1/2 to 4 year prison term for each of the second degree robbery counts. All sentences were to run concurrently.

 On December 6, 1983, the Appellate Division, First Department, affirmed the conviction without opinion, 98 A.D.2d 997, and on January 30, 1984 the New York Court of Appeals denied application for leave to appeal, 61 N.Y.2d 765, 472 N.Y.S.2d, 460 N.E.2d 1368. Ortiz petitioned this Court for a writ of habeas corpus on August 16, 1984.

 (B) Petitioner Rodriguez.

 Petitioner Rodriguez was charged in New York County with six counts of first degree robbery resulting from a May 15, 1980 incident at a jewelry office on the ninth floor of 10 West 47th Street. There were two participants in the hold-up, one of whom carried a shotgun. The evidence at trial showed that the second, unarmed man involved in the hold-up was recognized as Rodriguez, on the basis of his previous visits to the jewelry office. Rodriguez entered the premises with the gunman. He then handcuffed the five jewelry office workers to a jewelry polishing machine, using handcuffs produced from a bag he was carrying. Rodriguez filled the empty bag with jewelry while the gunman kept the victims at bay. Two other people entered the office during the course of the robbery, and were also handcuffed by Rodriguez. The two robbers took money and personal jewelry from them. Before leaving the office, Rodriguez severed the telephone wires.

 At trial, defendant admitted taking part in the robbery, but interposed the defense of duress. He asserted that his acts were compelled by the previously unknown gunman, who had accosted him just outside the office, warned him not to be foolish, robbed him and threatened his family. Rodriguez stated that he had not seen the gunman before or since the robbery.

 In its charge, the trial court instructed the jury that the prosecution had the burden of proving beyond a reasonable doubt each element of robbery. The court explained to the jury that the defendant admitted being at the scene of the robbery, but that he "affirmatively denie(d) being an intentional participant." (Transcript at 285). The court further told the jury that petitioner had the burden of proving, by a preponderance of the evidence, that he acted under duress. No objections were made to the Court's charge.

 In the course of its deliberations, which lasted most of the day, the jury passed three notes to the judge which expressed some confusion as to where the burden of proof rested on the question of duress, and as to the relationship between intent and coercion. A third note was submitted with a "protest" on the part of one juror who felt that the law charged on duress was "confusing." (Transcript at 306-307). The judge reinstructed the jury regarding the burden on duress. The jury shortly thereafter returned a guilty verdict on all six counts of first degree robbery submitted to them.

 On August 3, 1982, Rodriguez was sentenced to concurrent terms of imprisonment of 8 to 16 years on each count. The Appellate Division, First Department, affirmed without opinion on October 4, 1983, 97 A.D.2d 683 (1st Dept.). On December 9, 1983, Rodriguez' application for leave to appeal to the Court of Appeals was denied, 61 N.Y.2d 677, 472 N.Y.S.2d 1038, 460 N.E.2d 241.


 (A) Procedural ...

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