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CABAN v. MITCHELL

June 15, 1995

AUGUSTIN CABAN, Petitioner, against ROBERT MITCHELL, Superintendent, Eastern New York Correctional Facility, Respondent.


The opinion of the court was delivered by: KATZ

 THEODORE H. KATZ, United States Magistrate Judge.

 TO THE HONORABLE JOHN E. SPRIZZO, United States District Judge:

 This habeas corpus action was referred to me, pursuant to your Order of Reference, for a report and recommendation in accordance with 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 4 of the Southern District of New York Rules for Proceedings Before Magistrate Judges. For the reasons that follow, I recommend that the petition for a writ of habeas corpus be denied and the action be dismissed.

 BACKGROUND

 Petitioner Augustin Caban was indicted in New York County in connection with an incident in which Lolita Hart was shot in the left leg and right knee during a dispute with Petitioner. Count One of the indictment charged Petitioner with assault in the first degree (N.Y. Penal Law § 120.10(1) (McKinney, 1987)), and Count Two charged Petitioner with assault in the second degree (N.Y. Penal Law § 120.05(4)). *fn1" On August 8, 1989, after a jury trial in the Supreme Court for New York County, Caban was convicted of assault in the second degree (N.Y. Penal Law § 120.05(2)), as a lesser included offense under Count One of the indictment. He was also convicted of reckless endangerment in the second degree (N.Y. Penal Law 120.20), as a lesser included offense under Count Three, and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03) under Count Four. (Trial Transcript ["Tr."] at 331.) Pursuant to the court's instructions (Tr. at 328-329), the jury did not consider the charge in Count Two, since it found Petitioner guilty under the first count. Caban was subsequently sentenced to concurrent terms of imprisonment of three and one-half to seven years for assault in the second degree, one year for reckless endangerment in the second degree and six to twelve years for criminal possession of a weapon in the second degree. See People v. Caban, 181 A.D.2d 536, 581 N.Y.S.2d 42 (1st Dept. 1992).

 In an appeal to the Appellate Division, First Department, Caban argued that: (1) the trial court erred in not including a jury instruction on assault in the third degree (N.Y. Penal Law § 120.00(2)) as a lesser included offense under Count Two of the indictment; (2) the prosecutor's summation was improper because he repeatedly denigrated the defense and stated that the evidence was overwhelming; and, (3) the sentence of six to twelve years for criminal possession of a weapon was excessive. (Brief for criminal possession of a weapon was excessive. (Brief for Defendant-Appellant, undated, ["Pet. App. Br."], at 5-13.) The Appellate Division affirmed Caban's conviction on March 17, 1992, holding that no reasonable view of the evidence could have supported a lesser included offense instruction of assault in the third degree. *fn2" See Caban, 181 A.D.2d at 536, 581 N.Y.S.2d at 42. Appellate counsel sought leave to appeal to the New York Court of Appeals on grounds of failure to charge a lesser included offense. Leave to appeal was denied on May 15, 1992. See People v. Caban, 79 N.Y.2d 1047, 596 N.E.2d 412, 584 N.Y.S.2d 1014 (1992). Caban subsequently filed this pro se petition for a writ of habeas corpus. He contends that the failure to instruct the jury on assault in the third degree as a lesser included offense to assault in the second degree, under Count Two, denied him his right to due process, in violation of the Fourteenth Amendment. (Petition, dated July 19, 1993 ["Pet."], at 5.) Respondent argues that the petition does not present a federal claim subject to habeas review and, in any event, a lesser included offense instruction was unnecessary since the evidence did not reasonably support a charge of assault in the third degree. (Respondent's Memorandum of Law, dated January, 1992 ["Resp. Memo"], at 2-5.) It is undisputed that Petitioner's claim is exhausted.

 Evidence at Trial

 At trial, the state presented testimony from the victim, Lolita Hart, an eyewitness to the shooting, Robin Ervin, as well as the two police officers, Fagan and Reilly, from whom Ms. Hart sought help after the shooting. The defense presented no witnesses. On December 29, 1988, Ms. Hart appeared at Petitioner's apartment at about 1:00 a.m. (Hart: Tr. at 83-84; Ervin: Tr. at 107.) *fn3" An argument ensued when the Petitioner accused Ms. Hart, who had a prior history of stealing from the Petitioner (Hart: Tr. At 107), of stealing a radio. (Hart: Tr. at 84-85.) Eventually the Petitioner pulled out a revolver and pointed it towards the floor. (Hart: Tr. at 87-88.) While Petitioner was standing about five to six feet from Hart (Ervin: Tr. at 129), Petitioner shot her. (Hart: Tr. at 89.) Robin Ervin, Petitioner's girl-friend, testified: "... He came out of the room. He was telling -- I was telling, 'Lolita, go, Lolita. He got a gun; he got a gun,' and Lolita just still standing there telling him give her the book; give her the book. He just shot her, shot her in the leg." (Ervin: Tr. at 126-127.) The bullet went through Ms. Hart's left leg and into her right knee. (Hart: Tr. at 86, 89; Ervin: Tr. at 127.)

 After being shot, Ms. Hart hopped downstairs. (Hart: Tr. at 89-90.) While she was trying to call 911, she noticed a police car, which she then flagged down. (Hart: Tr. at 90.) Police Officer Fagan, one of the officers in the car, testified that he saw a gunshot wound in Hart's lower left leg. (Fagan: Tr. at 212.) When asked who had shot her, Ms. Hart indicated that it was "Pop," a name that Ms. Hart used to refer to Petitioner. (Hart: Tr. at 93; Reilly: Tr. at 46; Fagan: at 213.) The victim was taken to Harlem Hospital in an ambulance and remained there for three days. (Hart: Tr. at 94.) The victim's right leg was placed in a cast for seven weeks. (Hart: Tr. 95-96.) At the time of the trial, the bullet was still lodged in the her knee. Id. The victim had scars on her left leg where the bullet entered and exited, and on her right knee where the bullet entered. (Hart: Tr. at 95.)

 Charge to the Jury

 Initially, the trial judge instructed the jury on assault in the first degree (N.Y. penal Law § 120.10(1)) *fn4" under Count One and assault in the second degree (N.Y. Penal Law § 120.05(4)) *fn5" under Count Two. (Tr. at 266-273.) After the jury was charged but before it began deliberations, Petitioner's attorney asked the court "to charge all the way down on the assault counts and on the reckless endangerment counts," because "the evidence supports it to charge down all the way." (Tr. at 287.) Defense counsel based his request for charges on intentional assault in the third degree (N.Y. Penal Law § 120.00(1)) *fn6" and reckless assault in the third degree (N.Y. Penal Law § 120.00(2)), *fn7" apparently on the assumption that the use of a weapon was of no significance. *fn8" (Tr. at 290.) He also posited a theory that someone other than Petitioner fired the gun. (Tr. at 295.)

 The court agreed to include assault in the second degree (N.Y. Penal Law § 120.05(2)) *fn9" (intentionally causing physical injury rather than serious physical injury, by means of a weapon), as a lesser included offense under Count One. (Tr. at 294.) However, the court declined to charge down to third degree assault on either count. (Tr. at 289, 294-296.) The court concluded that there was no reasonable view of the evidence that would allow a jury to find that Petitioner acted without a weapon. *fn10" Id. Subsequently, the judge recharged the jury with a charge of second degree assault as a lesser included offense under Count ...


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