fairly supported by the record, is sufficient to support the concurrency of petitioner's sentence. See Sumner v. Mata, 449 U.S. 539, 544-47, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1980).
Petitioner's detailed memorandum of law makes no complaint about the fairness of the actual sentence resulting from its consecutive nature, but rather only that concurrent sentences should have been required.
Because no showing that the sentence was grossly inappropriate to the crime so as to present a federal constitutional question, it is not necessary to consider the question of whether habeas is available where one's incarceration would be currently authorized even if the relief requested (vacating the consecutive aspect of petitioner's sentence) were granted.
Petitioner challenges the trial court's instructions based upon a misquotation of the record substituting entirely different language for that given. The charge actually given included a statement that "society indeed would be in a dangerous situation if the People were required to establish the guilt of a defendant beyond all possible doubt." Tr. 771 (emphasis added). Petitioner's version substitutes "a reasonable doubt" for "all possible doubt," thus converting a correct instruction into an obviously improper one. The trial court gave the standard instruction that the People "are required to prove guilt beyond a reasonable doubt" and repeated that standard on several occasions. There is no indication that any confusing language caused the charge as a whole to be misleading, as required to present a federal constitutional violation. Perez v. Irwin, 963 F.2d 499 (2d Cir. 1992).
A black-and-white photograph of a burned murder victim was shown to the jury, obviously probative and important evidence as to who was killed and burned, and also the underpinning for expert testimony concerning whether the child was dead when burned.
Introduction of exhibits which are inflammatory for reasons unrelated to the charges and serve no genuine purpose in connection with the trial is improper. See Fed.R.Evid. 403; United States v. Borello, 766 F.2d 46 (2d Cir. 1985). Even such introduction, however, would not justify a finding of a constitutional violation absent a substantial and injurious effect or influence in determining the probable verdict. See Brecht v. Abrahamson, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).
Here there was no controversy over the horrific nature of the murder and arson involved, but solely as to whether the crimes were committed by petitioner. The exhibit was relevant to the latter issue by connecting evidence of petitioner's self-avowed desire to kill the child with both the murder and the fire. There is no basis for finding use of the photograph to have violated the federal Constitution.
Petitioner's claim that legally insufficient evidence was offered was carefully considered by the Appellate Division in its affirmance of petitioner's conviction in People v. Medina, 120 A.D.2d 749, 502 N.Y.S.2d 792 (2d Dept. 1986). The evidence, summarized above, is adequate to meet federal constitutional requirements that there be some rational basis for the conviction. Evidence existed establishing the deaths and fire; petitioner made numerous statements confirming his involvement in the fire and his intent to kill.
Ten (10) years after his conviction, petitioner moved to vacate the conviction on grounds of newly discovered evidence consisting of an affidavit of Julia Padilla who claimed to have lied to incriminate petitioner because of jealousy. Ms. Padilla's testimony buttressed the testimony of two other witnesses who, as conceded in petitioner's memorandum of law "claimed that the petitioner had admitted to them that he committed the crime." The transcript establishes that other witnesses, apart from Ms. Padilla, testified that plaintiff said "I did it" and that he "didn't mean to hurt [the mother]," but merely wanted the child "out of the way." Tr. 422.
Discrediting one witness who gave corroborative testimony would be unlikely to alter the result. This is particularly true since Ms. Padilla's trial testimony was partially favorable to petitioner, including a statement that petitioner told her "that he had started [the fire] but he didn't mean to do it."
Even this testimony was given reluctantly at trial and only after the trial judge directed Ms. Padilla to answer.
Recantations of testimony in criminal cases are regarded with the utmost suspicion. Bagby v. Kuhlman, 932 F.2d 131 (2d Cir. 1991); Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1988). Such suspicion is enhanced when the alleged falsity of the trial testimony is asserted ten years after trial. There is no authority for finding a violation of federal constitutional law under such circumstances.
Authority for appointment of counsel in an appropriate case is provided by 28 U.S.C. 1915(d). Having assessed the material now available with respect to the merits of petitioner's case, efforts to obtain counsel, along with the availability of counsel in accordance with the standards set forth in Cooper v. A. Sargenti Co., 877 F.2d 170 (2d Cir. 1989) and Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986), the Court denies the application.
Because the petition lacks merit, no certificate of probable cause shall be granted under Rule 22(b) of the Federal Rules of Appellate Procedure. For the same reasons, any appeal would not be taken in good faith and consequently in forma pauperis treatment is not granted under 28 U.S.C. 1915.
Dated: White Plains, New York
January 12, 1995
/s/ John S. Martin, U.S.D.J. for
VINCENT L. BRODERICK, U.S.D.J.