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April 24, 1990


The opinion of the court was delivered by: Whitman Knapp, District Judge.


Petitioner Ignacio Reynoso applies for habeas corpus pursuant to 28 U.S.C. § 2254. For reasons which follow, we deny his application.


Petitioner was convicted of manslaughter in the first degree after a jury trial before the Hon. Vincent A. Vitale in the New York State Supreme Court for the County of the Bronx. The Appellate Division, First Department, affirmed without opinion. People v. Reynoso (1st Dept. 1987) 133 A.D.2d 1019, 519 N YS.2d 989. The New York Court of Appeals affirmed with a memorandum opinion. People v. Reynoso (1988) 73 N.Y.2d 816, 537 N YS.2d 113, 534 N.E.2d 30. Petitioner is currently serving an 8 1/3 to 25 year sentence at Great Meadow Correctional Facility in Comstock, New York.

In his habeas application, petitioner contends that the trial judge made errors of state law rising to constitutional dimension by failing to charge the jury on justification, and by precluding certain evidence that he contends would have supported such a defense. New York law requires that a justification charge be given where there exists "a reasonable view of the evidence from which a jury could conclude that the defendant's acts were justified." Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990).

In determining whether that standard has been met, we must view the evidence adduced at trial in the light most favorable to petitioner. See People v. McManus (1986) 67 N.Y.2d 541, 549, 505 N.Y.S.2d 43, 48, 496 N.E.2d 202, 206; People v. Steele (1970) 26 N.Y.2d 526, 529, 311 N.Y.S.2d 889, 891-92, 260 N.E.2d 527, 528-29. Contrary to our assertion at oral argument, we must also consider the challenged evidentiary rulings. If, on evidence available to him, petitioner would have been constitutionally entitled to a justification charge, the erroneous exclusion of any such evidence could not have been a legitimate basis for depriving him of that right.

A. The Evidence Adduced at Trial

The evidence relevant to the constitutional question before us was provided by: Lepido Vargas, manager of a bodega that petitioner visited moments before the incident in question; Betsy Montero, Maria Diaz and Iris Nieves, three women who were friends of Victor Soriano (the deceased) and witnessed the incident; and Jay Friedman, a police officer who arrived at the scene shortly after the incident. Their testimony established the following:

At approximately 11:30 P.M. on November 17, 1984, the deceased, Montero, Diaz and Nieves were standing in front of a bodega at 728 Courtlandt Street between 155th and 156th Streets in the South Bronx. The deceased was arguing with Montero, his girlfriend. Petitioner passed the group without incident, and made his way to a bodega further down the street to pick up some money that was owing to him. When he reached that bodega, its manager told him to come back in a few minutes. Petitioner left the bodega and again passed the deceased, who was still arguing with Montero. The deceased pointed his finger at petitioner and said in Spanish, "I want to talk to you, faggot." The deceased, who was "very angry," also demanded that petitioner stop smiling at him and keep out of his business. Petitioner said nothing and continued on his way.

After petitioner had passed, the deceased went into the bodega at 728 Courtlandt Avenue. Petitioner started back up the street to the other bodega. The deceased emerged from the 728 Courtlandt Avenue bodega when petitioner was about eight to ten feet away.

The deceased advanced toward petitioner, again telling him to stay out of his business and again declaring that he "wanted to talk" to him. Petitioner moved back, saying that he did not want to talk, and urging the deceased not to come near him. According to Diaz, the deceased then began point and to make circular motions with his hands.

B. The Challenged Evidentiary Rulings

There can be no doubt that the court properly precluded petitioner's sister from testifying that, several hours after the shooting, petitioner had told her that he had believed the deceased to have been armed. Clearly, the testimony was hearsay, offered for the truth of the matter asserted. Nor could the statement have been admitted as evidence of petitioner's state of mind. The state of mind exception to the hearsay rule relates only to a declarant's mental condition at the time the ...

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