United States District Court, Eastern District of New York
April 23, 1991
ERNEST MOLOI, PETITIONER,
DEAN R. RILEY, RESPONDENT.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM AND ORDER
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
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.
Federal law vests the district courts with jurisdiction to hear a
collateral attack on state court convictions after all state court
remedies have been exhausted (see 28 § U.S.C. 2254 ; Blissett
v. Lefevre, 924 F.2d 434, 438 [2d Cir. 1991]). The
record indicates that the Petitioner has exhausted his state court
remedies (see 28 U.S.C. § 2254[b] and [c]; Preiser v. Rodriguez,
411 U.S. 475, 492, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439 ). As a
result, the Court will turn to the merits of this application.
A petition for a writ of habeas corpus shall only be granted only when
the state court has committed error which deprives Petitioner of a
fundamentally fair trial:
"[t]he Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a state
court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of
the United States."
(28 U.S.C. § 2254[a]; see Blissett v. Lefevre, supra, 924 F.2d at 439
["relevant inquiry is whether the error ... deprived Petitioner of a
fundamentally fair trial"]; see also Collins v. Scully, 755 F.2d 16
[2d Cir. 1985] [habeas relief on claim of evidentiary error granted only
if "the error was so pervasive as to have denied ... a fundamentally fair
The Petitioner's constitutional challenges to his state conviction are
discussed below in seriatim.
(1) Due Process/Admission of Photographs
Petitioner contends that the introduction of photographs depicting the
complainant's burn scars was unduly prejudicial and deprived him of his
right to a fair trial in accord with fourteenth amendment due process. In
a habeas corpus proceeding, the district court looks to determine if the
Petitioner's constitutional rights were infringed upon, and shall only
grant relief if the Petitioner was deprived of a fair trial (see United
States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342
 [absent denial of fundamentally fair trial no due process
violation]; Collins v. Scully, supra, 755 F.2d at 18).
Under New York law, the trial court judge has broad discretion in
determining the admissibility of photographs (see United States v.
McRae, 593 F.2d 700, 707 [5th Cir. 1979] [photos only excluded if
unfairly prejudicial]; United States v. Gel Spice Co., 601 F. Supp. 1214,
1221 [E.D.N. Y. 1985] [same]). In fact, the New York Court of Appeals has
held that photographic evidence shall only be excluded if its sole
purpose is to prejudice the defendant (People v. Pobliner, 32 N.Y.2d 356,
369-70, 345 N.Y.S.2d 482, 493, 298 N.E.2d 637, 645 , cert. denied,
416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110 ; see also People v.
Bell, 63 N.Y.2d 796, 797, 481 N Y So.2d 324, 325, 471 N.E.2d 137, 138
 [photos of knife imbedded in victim's back admissible]).
Further, in this case one of the reasons the photographs were offered
was to rebut the defense proffered by the Petitioner at trial. As both
the trial court and the Appellate Division found, the photographs at
issue were probative of the Petitioner's innocence or guilt, since the
Petitioner asserted the defense at trial that Ms. Moeletsi's burns were
caused by her accidentally spilling the pot of oil on herself. Once
Petitioner raised this defense, the photos of the scars were relevant on
that issue alone (see United States v. Brady, 579 F.2d 1121, 1129 [9th
Cir. 1978] [photos admitted to show cause of death], cert. denied,
439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 ; United States v.
Bailey, 537 F.2d 845, 846 [5th Cir. 1976] [photos probative of injuries,
such rulings only disturbed if abuse of discretion]; People v. Green,
134 A.D.2d 516, 521 N.Y.S.2d 291, 292 [2d Dept. 1987] [photos probative
of material issues admissible]).
Even assuming, arguendo, that such admission was error such error would
not warrant the granting of the petition unless the error deprived
Petitioner of a constitutional right (see United States v. Adams,
443 F.2d 7, 8 [2d Cir. 1971]). As a matter of law, the asserted error
does not rise to such a constitutional level (see Harding v. Lewis,
641 F. Supp. 979, 995-96 [D.Ariz. 1986] [admission of photos did not rise
level of constitutional error], aff'd, 834 F.2d 853 [9th Cir. 1987],
cert. denied, 488 U.S. 871, 109 S.Ct. 182, 102 L.Ed.2d 151 ; see
also Walle v. Sigler, 456 F.2d 1153, 1155 [8th Cir. 1972] [same]).
(2) Cruel and Unusual Punishment
Petitioner argues that his sentence "should be reduced, in light of his
educational background, and lack of a criminal record or propensity for
violence in the past." The New York Penal Law provides that for a
conviction of Assault in the First Degree the sentence of the Defendant
shall have a maximum term of "at least six years and must not exceed
twenty-five years" (N.Y. Penal Law § 70.02[a] [McKinney 1987]).
The minimum term of this sentence "must be one-third of the maximum term
imposed" (Id. § 70.02). Since the Petitioner was sentenced within
these statutory limits this claim does not rise to the level of
constitutional infringement (see United States v. Gaggi, 811 F.2d 47, 62
[2d Cir. 1987] [no appellate review of sentence within statutory
limits]; United States v. Tramunti, 513 F.2d 1087, 1120 [2d Cir. 1975]
[same]; Dorszynski v. United States, 418 U.S. 424, 431-32, 94 S.Ct.
3042, 3047, 41 L.Ed.2d 855  [same]).
(3) Double Jeopardy
Finally, Petitioner contends that his conviction for both Reckless
Endangerment and Reckless Assault constitutes a violation of the
prohibition against double punishment for a single crime in contravention
of the Fifth Amendment (see United States v. Maldonado-Rivera,
922 F.2d 934, 980 [2d Cir. 1990] [the Double Jeopardy Clause of the Fifth
Amendment "protects against multiple punishments for the same
offense"]). The Appellate Division — "by reversing the conviction
for reckless endangerment in the first degree, vacating the sentence
imposed thereon, and dismissing that count of the indictment" —
granted the Petitioner the relief here sought by way of collateral
attack. By vacating Petitioner's conviction for Reckless Endangerment,
only a single punishment for this crime is left intact. Therefore
Petitioner's argument is moot (Gumbo v. Eyman, 409 F.2d 400, 400 [9th
Cir. 1969] [per curiam] [habeas petition mooted by reversal of
conviction]; see Smith v. Settle, 212 F. Supp. 622, 628 n. 2 [W.D.Mo.
1962] [habeas petition mooted by dismissal of indictment]).
The Court finds none of the Petitioner's arguments sufficient to
justify issuance of a writ of habeas corpus. Accordingly, the instant
Petition is denied.
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