the time of the homicide, he acted under extreme emotional disturbance. Under New York law, extreme emotional disturbance is an affirmative defense to second degree murder. See N.Y. Penal Law § 125.25(1) (McKinney 1987). If a defendant establishes this affirmative defense by a preponderance of the evidence, the charge of Murder in the Second Degree is reduced to Manslaughter in the First Degree. N.Y. Penal Law § 125.20(2) (McKinney 1987).
New York courts have interpreted the state's extreme emotional disturbance affirmative defense to be appropriate only when the actions of a defendant are attributable to a "mental infirmity not arising [sic] to the level of insanity." People v. Patterson, 39 N.Y.2d 288, 302, 383 N.Y.S.2d 573, 582, 347 N.E.2d 898, 907 (1976), aff'd, 432 U.S. 197. 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). Whether such a state existed is determined by looking both to the subjective understanding of the actor and to any objective reasonable explanations or excuses for the actor's mental state. See People v. Cassava, 49 N.Y.2d 668, 678-679, 427 N.Y.S.2d 769, 775, 404 N.E.2d 1310, 1315-16, cert. denied, 449 U.S. 842, 101 S. Ct. 122, 66 L. Ed. 2d 50 (1980). The Second Circuit has also state that "anger alone, however, does not amount to a mental infirmity or the loss of self-control associated with the defense of extreme emotional disturbance." Rice v. Hoke, 846 F.2d 160, 166 (2d Cir. 1988).
In a case involving nearly identical facts to this one, Rice v. Hoke, supra, the defendant became involved in an altercation on the street, told his intended victim "'I will be back,'" retrieved a loaded gun from his apartment building, and returned to the scene of the altercation, where he fired the gun "five times at close range." Id. at 166. The court in Hoke, based upon the aforementioned facts, found that the trial court was correct in refusing to charge the jury regarding the extreme emotional disturbance defense because it found that "the proof showed only that Rice [the defendant] was angry." Id. at 166.
Similarly, petitioner's nearly identical actions cannot be characterized as anything more than anger and thus did not rise to the level of extreme emotional disturbance. The trial court expressly noted this, (TT at 504), and this court fully concurs with that assessment of the evidence. At trial, Delgado repeatedly stated that, following the fistfight which was the catalyst of the subsequent shooting, he was not feeling anything which might demonstrate an extreme emotional disturbance (TT at 374). Defendant also explained the subsequent encounter which culminated in the shooting in a manner which conveyed that at all times he was aware of the nature and significance of his actions.
This court's review of the trial transcript supports the state trial Judge's analysis. The evidence at petitioner's trial failed to demonstrate that the precipitate of petitioner's act was anything greater than anger. (TT at 504). The defense consistently argued self-defense before the jury and there was no evidence in the record to support a finding of Manslaughter. (TT at 495-99, 503-09).
Based on the evidence adduced at trial, the trial court's decision to not give the jury an instruction as to the defense of extreme emotional disturbance was proper, especially in light of the petitioner's own testimony. Notably, the trial court gave an extensive instruction with respect to justification defense. (TT 595-99)
3. The Interpreters.
Next, petitioner claims that he was denied due process and equal protection of the law because, first, he did not understand his interpreters and second, the trial court failed to ascertain the qualifications of the court interpreters. Specifically, petitioner claims that the interpreters failed to explain what was being discussed by his counsel, the trial court, and the State's attorney and that plea offers made by the State were not translated to him.
Although a defendant has the right to an interpreter who is "competent to render accurate translations," the right to challenge the competence of an interpreter "may be waived if not raised in timely fashion." U.S. v. Villegas, 899 F.2d 1324, 1348 (2d Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 535, 112 L. Ed. 2d 545 (1990) (citing Vallardes v. United States, 871 F.2d 1564 (11th Cir. 1989)).
An examination of the trial transcript reveals that the petitioner failed to alert the trial court of any problems with the interpreters. Petitioner's failure to object to the translation at trial defeats his claim because:
only if the defendant makes any difficulty known to the court can the judge take corrective measures. To allow a defendant to remain silent throughout the trial and then, upon being found guilty, to assert a claim of inadequate translation would be an open invitation to abuse.
Vallardes v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989); accord United States v. Villegas, 899 F.2d 1324, 1348-49 (2d Cir. 1990). Delgado's failure to convey in any manner to the trial court the inadequacy of the interpreters prevents him from now seeking and be afforded relief on this claim.
4. Introduction of the Videotape.
Finally, petitioner claims that the admission of a videotape into evidence which contained a request by petitioner in English that he be able to speak with a lawyer, deprived him of his right to a fair trial. Petitioner also claims that the admission of the videotape into evidence also deprived him of his right to remain silent and his right to counsel.
The facts leading up to the admission of the tape into evidence are significant. Apparently, at trial, petitioner asserted that he did not understand English and, on that basis, the defense argued that Delgado's alleged confession was fabricated by the arresting officer. Petitioner adamantly stated that he neither spoke nor understood English, and therefore could not have made the confession to the detective which was attributed to him. (TT at 355).
To rebut this position, the State sought to introduce the videotape to demonstrate that petitioner was indeed capable of speaking English to the arresting officer. On the videotape, the petitioner is seen and heard stating, in English, that before he would speak to the police, he wanted to speak to his lawyer first.
Before admitting the videotape, the trial court reviewed it in camera. The court then ruled that showing the jury the videotape for the limited and exclusive purpose of rebutting the defense contention did not amount to a deprivation of petitioner's right to silence, right to counsel or due process right to a fair trial. The trial court specifically based his finding of admissibility on the fact that it was being used in the rebuttal case only. I agree with this analysis.
The defendant opened the door to this issue and the State attempted to introduce the videotape only to rebut the accusation of fabrication. Although it would have been better for the court to give the jury a limiting instruction in this regard, the State did not make any impermissible arguments or references to the tapes, but only used it to demonstrate to the jury that Delgado had a sufficient ability to speak English to make the confession that the police officer testified that Delgado had made. These facts do not support a conclusion that petitioner's right to a fair trial, right to counsel or right against self-incrimination were violated by the admission of the videotape.
Although this court does not construe the admission of the videotape into evidence as rising to the level of a constitutional violation,
the court finds that even if it did rise to such level, any error by the trial court was harmless error beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967). There was compelling evidence of defendant's guilt adduced at trial.
Petitioner also raises several other claims which do not rise to the level of a federal constitutional violation or which are otherwise not reviewable by this court. Specifically, petitioner seeks to have this court revisit the Fourth Amendment claim that his arrest and the search of his home were not based upon probable cause. Such ground, however, is not a basis for federal habeas corpus relief "unless the state denied the prisoner the opportunity for full and fair litigation of the claim " Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991) (citing Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976)). Accord Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986); Styers v. Smith, 659 F.2d 293, 294 n.1 (2d Cir. 1981). Because petitioner did in fact receive a full and fair hearing on this issue, the court is now precluded from reexamining the claim.
In addition, petitioner also asserts that the trial court's failure to state the grounds for denial of petitioner's motion to vacate the judgment, pursuant to New York Criminal Procedure Law § 440.10 denied him the ability "to pursue a meaningful and intelligent appeal." (Petitioner's Traverse at 4). New York Criminal Procedure Law § 440.30(7) specifically instructs that a court, in denying a motion to vacate, "must set forth on the record its findings of fact, its conclusions of law and the reasons for its determination." N.Y. Crim. Proc. Law § 440.30(7) (McKinney 1987).
Petitioner's complaint about the trial court's noncompliance with § 440.30(7), a state law, is not a basis for issuing a writ of habeas corpus. Turner v. Sullivan, 661 F. Supp. 535, 540 (E.D.N.Y. 1987), aff'd, 842 F.2d 1288 (2d Cir.), cert. denied, 487 U.S. 1240, 108 S. Ct. 2913, 101 L. Ed. 2d 944 (1988). To merit the issuance of a writ, petitioner's sentence must violate the Constitution, laws or treaties of the United States. Rose v. Hodges, 423 U.S. 19, 21, 96 S. Ct. 175, 177, 46 L. Ed. 2d 162 (1975). Furthermore, "[a] federal court may not issue the writ on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 874, 79 L. Ed. 2d 29 (1984). Given petitioner's access to the voluminous papers regarding his case, the trial court's failure to state grounds for denial of the motion to vacate petitioner's conviction did not deprive him of the ability to make a meaningful appeal. Therefore, any error of state law did not rise to the level of a violation of federal due process rights and thus does not merit further review by this court. It is not a valid for the basis issuance of a writ of habeas corpus.
After examining the claims raised by Delgado in the instant petition, the court finds them to be without merit. Therefore, the court denies the request for habeas corpus relief.
Sterling Johnson, Jr.
UNITED STATES DISTRICT JUDGE
Dated: Brooklyn, New York
June 9, 1992