Petitioner's 1977 robbery conviction was not so similar to the crime charged that the jury was unduly prejudiced. The jury heard only that Petitioner had been convicted of robbery in 1977, and that he had spent time in prison as a result (T. 121-22). No further inquiry into the underlying facts of that conviction took place.
Thus, the trial court properly allowed limited cross-examination on Petitioner's prior robbery conviction for an appropriate purpose under state law--i.e., to impeach Petitioner's credibility on the witness stand, and not to allow proof of bad character and propensity to commit the crime charged. Cf. Mokone v. Kelly, 680 F. Supp. 679, 682-83 (S.D.N.Y. 1988). The admission of this evidence therefore did not deprive Petitioner of due process. See Spencer v. Texas, 385 U.S. 554 (1967).
II. THE JURY CHARGE
Petitioner also contends that the trial court denied him due process when it refused to charge the jury on the lesser included offense of assault in the third degree, a misdemeanor. Under New York Penal Law § 120.00(3), "[a] person is guilty of assault in the third degree when . . . with criminal negligence,
he causes physical injury to another person by means of a deadly weapon or a dangerous instrument."
Upon motion after trial, the trial court denied Petitioner's request to instruct the jury on the lesser included offense, finding "no . . . reasonable view of the evidence which would, under the circumstances of this case, justify the charge down" to third degree assault (T. 136). The Fourth Department affirmed, stating as follows:
The court properly refused to charge assault in the third degree as a lesser included offense of assault in the second degree. Viewing the evidence in the light most favorable to the defendant, we find that defendant's own testimony that he acted in self-defense negated any claim of reckless conduct, and that there was no reasonable view of the evidence that would support a finding that defendant committed assault in the third degree and not assault in the second degree.
People v. Walker, 168 A.D.2d at 984.
Based on the record before it, this court finds no reason to disturb the state courts' ruling. It should be noted that at trial and on appeal, Petitioner claimed that he acted recklessly, rather than intentionally, in stabbing Simmons. See N.Y. Penal Law §§ 120.00(2); 120.05(4). His claim on the instant petition is that he acted with criminal negligence. This claim was not exhausted at the state court level.
But even if the merits of the claim are addressed, the claim must be rejected. The state court ruling on recklessness encompasses the negligence claim. There is no reasonable view of the evidence which would support a finding that Petitioner failed to perceive the substantial risk that he would cause physical injury to Simmons when he grabbed the knife and stabbed him with it.
The Fourth Department also found that risk unjustifiable, based on its finding that the prosecution failed to disprove Petitioner's justification defense. According to the Fourth Department, the evidence presented at trial regarding the argument between Petitioner and Simmons, the struggle that ensued, and the circumstances surrounding the stabbing was sufficient to disprove the defense of justification beyond a reasonable doubt. See People v. Walker, supra, 168 A.D.2d at 984.
There is nothing in the record to support a jury finding that Petitioner failed to perceive a substantial and unjustifiable risk that he would cause physical injury to Simmons when he grabbed the knife and stabbed him. Accordingly, there is no merit to Petitioner's argument that he committed assault in the third degree rather than assault in the second degree. He was therefore not entitled to a jury charge including the lesser included offense, and was not denied due process when the trial court refused to give such a charge.
Based on the foregoing, the petition is dismissed in its entirety.
DATED: Buffalo, New York
November 13, 1992
Carol E. Heckman
United States Magistrate Judge