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MOLOI v. RILEY

April 23, 1991

ERNEST MOLOI, PETITIONER,
v.
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 Fifth Amendment.

BACKGROUND

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 [1988] [Bellacosa, J.]).

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.

DISCUSSION

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 [1988]; 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 [1972]). 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 ...


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