The opinion of the court was delivered by: Spatt, District Judge.
The instant Petition for a writ of habeas corpus raises the issues of
whether allowing the jury to view photographs of the victim's scars was
unconstitutionally prejudicial, whether the Petitioner's sentence should
be reduced in light of his prior exemplary conduct and whether the
Petitioner's convictions contravene the Double Jeopardy Clause of the
Petitioner's convictions stem from an incident involving him and his
girlfriend, Ms. Momokhabi Moeletsi. The Petitioner and Ms. Moeletsi began
arguing in the early morning hours of June 10, 1984, at which time Ms.
Moeletsi advised Petitioner that she was going to move out of his
apartment. Petitioner became enraged and began to beat and kick Ms.
Moeletsi. As Ms. Moeletsi began to pack her belongings, the Petitioner
called for her to come talk to him in the kitchen. When Ms. Moeletsi
complied, the Petitioner picked up a large pot of boiling oil, which he
threw at Ms. Moeletsi. Ms. Moeletsi suffered second and third degree
burns over 30% of her body.
Petitioner was convicted, after a jury trial, in New York Supreme
Court, Kings County (Douglass, J.), of two counts of Assault in the first
degree, Reckless Endangerment in the first degree and Criminal Possession
of a Weapon in the fourth degree. Petitioner was sentenced to separate
terms of imprisonment on each count, all of which were to be served
concurrently: five to fifteen years on the felony assault charges and one
year on the misdemeanor reckless endangerment and possession charges.
The Appellate Division, Second Department reversed the conviction on
the reckless endangerment charge, vacated the sentence thereon and
dismissed that count of the indictment (People v. Moloi, 135 A.D.2d 576,
578, 521 N.Y.S.2d 794 [2d Dept. 1987]). The Court held as follows:
"the trial court should have dismissed the count of
reckless endangerment in the first degree in light of
the jury's verdict of guilty on the count of reckless
assault in the first degree. The former is a lesser
included offense with respect to the latter" (Id.).
The remainder of the judgment of conviction was affirmed (Id.), and leave
to appeal was denied by the New York Court of Appeals (People v. Moloi,
70 N.Y.2d 1009, 526 N.Y.S.2d 943, 521 N.E.2d 1086  [Bellacosa,
Petitioner subsequently petitioned this Court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
He raises the following arguments in support of his petition: 1) that
the admission at trial of photographs of Ms. Moeletsi's burn scars was
unduly prejudicial and deprived him of his right to a fair trial in
accord with due process; 2) that his sentence "should be reduced, in
light of his educational background and lack of criminal record or
propensity for violence in the past"; and 3) that the conviction of both
Reckless Endangerment and Reckless Assault constitutes double punishment
for a single crime in contravention of the Fifth Amendment.
The Court finds each of these claims lacking in merit, and therefore
denies this Petition.
A petition for a writ of habeas corpus shall only be granted only when
the state court has committed error which deprives ...