The opinion of the court was delivered by: LEONARD D. WEXLER
Petitioner, Mario Russo ("Russo"), appearing pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Russo claims that he was deprived of his constitutional right to effective assistance of trial counsel. For the reasons set forth below, his application is dismissed.
On March 29, 1977, Russo was convicted after a jury trial in Supreme Court, Suffolk County, of murder in the second degree, kidnapping in the first degree, and conspiracy in the first degree. On April 28, 1977, he was sentenced to two indeterminate terms of twenty years to life on the class "A" felonies of murder and kidnapping and an indeterminate term of eight and one-third to twenty-five years on the conspiracy charge. All terms were to run concurrently.
The Appellate Division, Second Department, unanimously affirmed the conviction without opinion on January 20, 1980. See People v. Ventimiglia, 73 A.D.2d 1065, 423 N.Y.S.2d 975 (2d Dep't 1980). The Court of Appeals granted Russo leave to appeal and unanimously affirmed his conviction in a written opinion. See People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 (Ct. App. 1981).
Russo then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 arguing that: (1) the admission of certain evidence denied him his right to a fair trial and due process of law; (2) the trial court's refusal to grant him a mistrial after a co-defendant's trial was severed denied him a fair trial and due process of law; (3) the prosecutor's misconduct at trial deprived him of his rights to due process and a fair trial and violated his right against self-incrimination; (4) the trial court's instructions to the jury denied him a fair trial and due process of law; and, (5) the sentences imposed upon him were illegal and unconstitutional. In a Memorandum and Order dated March 14, 1983, Judge Pratt, sitting by designation in the district court, dismissed Russo's application on the ground that it included several unexhausted claims. (CV 81-4062).
Thereafter, Russo sought to vacate his conviction pursuant to § 440.10 of the New York State Criminal Procedure Law. He argued that: (1) he was deprived of his sixth amendment right to confrontation; (2) he was deprived of his right to effective assistance of trial counsel; and, (3) he had new evidence. That motion was denied in all respects. Order of Judge Thomas M. Stark, Ind. No. 845/76, dated September 27, 1989. Leave to appeal to the Appellate Division, Second Department, was denied. The current petition followed.
Presently, Russo raises only one ground in support of his petition: that he was denied effective assistance of trial counsel. In support of this claim, Russo asserts that his attorney failed to adequately prepare for trial, did not provide him with adequate representation during trial, presented a "lackluster" defense, and "most critically failed to function independently of [a co-defendant's attorney]." Russo's Memorandum of Law In Support of Petition for Habeas Corpus at 3. Russo contends that the fact that his attorney was retained and paid by the family of that co-defendant lends credence to this argument. Moreover, Russo maintains that he did not know of the financial arrangements between his attorney and the co-defendant's family until the time when he made his § 440.10 motion and after his prior habeas petitions were decided.
Respondent proffers that Russo has known the factual basis for his claim since the time of trial and cites the trial judge's decision denying Russo's § 440.10 motion as evidence of Russo's knowledge.
Judge Stark stated:
The claim that [Russo] was deprived of his right to effective assistance of counsel is not borne out by the record or facts of this case. [Russo] knew at the time of the trial who had apparently made the financial arrangements for his attorney by his own admission so such fact is hardly new. The representation of [Russo] as reflected in the trial record was a matter which was subject to review on appeal if [Russo] had chosen to raise that issue.
Opinion of Stark, J., dated September 13, 1989, at 3 (emphasis original). Thus, respondent argues that Russo's claim of ineffective assistance of trial counsel constitutes an abuse of the writ because it was not raised in the prior petitions.