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June 19, 1990


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


Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is denied.


Petitioner and two codefendants, Luis Maldonaldo and Anderson Garcia, were charged with the murders of Victor Martinez and Robert Toro. According to the two-count indictment, petitioner was an accessory to the Martinez murder and fired the shotgun that killed Toro. By a pretrial omnibus motion dated January 20, 1981, petitioner sought a severance of the two murder counts of the indictment. The motion to sever was denied. Following a jury trial on January 27, 1982, petitioner and both codefendants were convicted in New York Supreme Court, Kings County, on two counts of murder in the second degree.

On direct appeal, petitioner's conviction was modified. Upon review of petitioner's conviction as an accessory to the Martinez murder, the New York Appellate Division found that circumstantial evidence was insufficient to sustain a guilty verdict and, on that count, the conviction was reversed. People v. Aponte, 135 A.D.2d 544, 521 N.Y.S.2d 766 (2d Dep't 1987).

Petitioner filed a motion to reargue the remaining count of his conviction in the New York Appellate Division, but it was denied on February 25, 1988. By order of the court dated March 11, 1988, application for leave to appeal to the New York Court of Appeals was denied. People v. Aponte, 71 N.Y.2d 892, 527 N.Y.S.2d 1001, 523 N.E.2d 308(1988).

Having exhausted his state remedies, petitioner now seeks a federal writ of habeas corpus in this Court alleging: (1) improper joinder; (2) change of the State's theory of guilt at the appellate level; (3) prosecutorial misconduct; (4) ineffective assistance of counsel; and (5) evidence improperly admitted at trial.



Petitioner claims that the two counts of murder were improperly joined, depriving him of a fair trial as guaranteed by the fourteenth amendment).*fn1

The decision to grant a severance motion is entrusted to the sound discretion of the trial court, and will be reversed on appeal only when a defendant has suffered such substantial prejudice from a joint trial of two or more counts as to show an abuse of discretion. Alejandro v. Scully, 529 F. Supp. 650, 651 (S.D.N.Y. 1982). See United States v. Werner, 620 F.2d 922 (2d Cir. 1980). Nothing in the record shows any such abuse of trial court discretion.

According to the record, petitioner and codefendant Maldonaldo
threatened to kill Martinez during an argument over drug money. People
v. Maldonado, 126 A.D.2d 670, 671, 510 N.Y.S.2d 712, 713, (2d Dep't
1987). The following day, November 10, 1980, codefendant Garcia
approached petitioner and Maldonaldo, who were seated in a parked car
across from 136  So.2d Street in Brooklyn. Garcia then entered the
building at 136  So.2d Street with both victims, Martinez and Toro.
Shortly thereafter, Toro rushed out of the building and Garcia, armed
with a small caliber pistol, followed. Garcia and Toro entered a van and
drove away. Maldonaldo and petitioner followed in their car. Martinez was
found dead in the empty apartment. Id., 126 A.D.2d at 671-672, 510
N.Y.S.2d at 713-714.

The record further discloses that on November 11, 1980, petitioner was sitting in the driver's seat of a car; also seated in the car were the two codefendants. As the next victim, Toro, walked down the street and came within six feet of the car, someone fired a gun and killed Toro. The gunshot appeared to come from the driver's side of the car. Maldonado, 126 A.D.2d at 672, 510 N.Y.S.2d at 714.

As a matter of sound discretion, the trial judge properly denied a motion to sever the two charges. Indeed, two distinct criminal transactions are properly joined if evidence of one crime is material and establishes motive with respect to another crime. Petitioner claims that the connection between the two murder charges "was entirely too speculative to justify the prejudicial impact created by joinder." Petitioner's Mem. at 19. Disposing of the case, however, in a single proceeding "conserves judicial resources, alleviates the burdens on citizens serving as jurors, and avoids the necessity of having witnesses reiterate testimony in a series of trials." United States v. Borelli, 435 F.2d 500, 502 (2d Cir. 1970), cert. denied, 401 U.S. 946, 91 S.Ct. 963, 28 L.Ed.2d 229(1971). It is especially difficult "`to justify the disintegration of a trial . . . in which there is a cohesion of crime alleged, defendants charged and proof adduced.'" United States v. Persico, 621 F. Supp. 842, 852 (S.D.N.Y. 1985) (quoting United States v. Kahn, 381 F.2d 824, 840 (7th Cir.), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661(1967)).

To succeed on a claim for a federal writ of habeas corpus, petitioner must show that the joint trial was so prejudicial as to actually render petitioner's state trial fundamentally unfair and, hence, violative of due process. Alejandro, 529 F. Supp. at 651 (citing Tribbitt v. Wainwright, 540 F.2d 840, 841 (5th Cir. 1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1184, 51 L.Ed.2d 587 (1977)); Melchior v. Jago, 723 F.2d 486, 491 (6th Cir. 1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2156, 80 L.Ed.2d 542(1984). Because petitioner has not demonstrated prejudice sufficient to show ...

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