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))
(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.
Id. Subsequently, the judge recharged the jury with a charge of second degree assault as a lesser included offense under Count One, and instructed it not to consider Count Two (recklessly causing serious injury with a weapon) unless it acquitted Petitioner of intentional conduct under Count One. (Tr. at 328-329.)
Petitioner claims that he was deprived of a fair trial, in violation of the Due Process Clause of the Fourteenth Amendment, by the trial court's failure to charge assault in the third degree as a lesser included offense to assault in the second degree. (Pet. at 5.)
As an initial matter, there is some question as to whether this issue presents a federal claim. While the Supreme Court has held that the failure to charge a lesser included offense in capital cases, where the evidence warrants such a charge, raises a constitutional issue that may be considered on federal habeas review, see Beck v. Alabama, 447 U.S. 625, 627, 100 S. Ct. 2382, 2384, 65 L. Ed. 2d 392 (1980), it has expressly reserved the question of whether due process requires a lesser included offense instruction in the non-capital context. Id. 447 U.S. at 638 n.14, 100 S. Ct. at 2390 n.14; see also Knapp v. Leonardo, 46 F.3d 170, 179 (2d Cir. 1995); Rice v. Hoke, 846 F.2d 160, 164 (2d Cir. 1988).
Similarly, the Second Circuit has not yet decided the issue.
Knapp, 46 F.3d at 179 (issue was unnecessary to resolve, since the evidence did not warrant an instruction on lesser included offense); Campaneria v. Reid, 891 F.2d 1014, 1022 (2d Cir. 1989), cert. denied, 499 U.S. 949, 111 S. Ct. 1419, 113 L. Ed. 2d 471 (1991) (same); Rice, 846 F.2d at 166 (same); Harris v. Scully, 779 F.2d 875, 880-81 (2d Cir. 1985) (same). There is a split in other circuits that have addressed the issue. Several circuits have held that a due process violation occurs when the failure to give a lesser included offense charge, in violation of state law, constitutes an error of such a magnitude so as to result in "a miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure. ..." Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir.) (en banc), cert. denied, 496 U.S. 929, 110 S. Ct. 2626, 110 L. Ed. 2d 646 (1990); see also Tata v. Carver, 917 F.2d 670, 671 (1st Cir. 1990); Wilson v. McCaughtry, 994 F.2d 1228, 1238 (7th Cir. 1993); Pitts v. Lockhart, 911 F.2d 109, 112 (8th Cir. 1990), cert. denied, 501 U.S. 1253, 111 S. Ct. 2896, 115 L. Ed. 2d 1060 (1991). Other circuits have held that the absence of a lesser included offense instruction never raises a constitutional issue allowing for habeas review in non-capital cases. See Chavez v. Kerby, 848 F.2d 1101, 1103 (10th Cir. 1988); Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988); James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976); Perry v. Smith, 810 F.2d 1078, 1080 (11th Cir. 1987).
In my view, it is unnecessary to resolve this question since, as a matter of state law, the evidence in this case did not warrant a charge of assault in the third degree. See, e.g., Rice, 846 F.2d at 165-66 (where the jury charge did not warrant a lesser included instruction, under the standard established by New York State statutory and decisional law, Second Circuit affirmed dismissal of petitioner's habeas claim); Rosado v. Kelly, No. 88 Civ. 1759 (RWS), 1988 U.S. Dist. LEXIS 7790, *2, 1988 WL 80226, * 1 (S.D.N.Y. July 27, 1988) ("The Second Circuit recently held that a refusal to give a lesser included offense instruction does not rise to the level of constitutional error where the refusal was correct as a matter of state law.").
Under New York law, the court must submit any lesser included offense to the jury if it is requested by either party to do so, and "if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater." N.Y. Crim. Proc. Law § 300.50. A defendant seeking a lesser included offense charge must demonstrate that (1) "it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense," and (2) "there is a reasonable view of the evidence in the particular case that would support a finding that he committed the lesser offense but not the greater." People v. Glover, 57 N.Y.2d 61, 63, 439 N.E.2d 376, 377, 453 N.Y.S.2d 660, 661 (1982) per curiam).
In determining whether to charge a jury on a lesser included offense, the evidence must be viewed in a light most favorable to the defendant. People v. Martin, 59 N.Y.2d 704, 705, 450 N.E.2d 225, 226, 463 N.Y.S.2d 419, 420 (1983); People v. Henderson, 41 N.Y.2d 233, 236, 359 N.E.2d 1357, 1360, 391 N.Y.S.2d 563, 566 (1976). The court is not permitted to weigh the evidence in arriving at its determination. See Henderson, 41 N.Y.2d at 236, 359 N.E.2d at 1360, 391 N.Y.S.2d at 566 ("The court's appraisal of the persuasiveness of the evidence indicating guilt of the higher count is irrelevant.").
At the same time, however, "the jury should not be permitted to choose between the crime charged and some lesser crime where the evidence essential to support a verdict of guilt of the lesser necessarily proves guilt of the greater crime as well . . . ." People v. Discala, 45 N.Y.2d 38, 43, 379 N.E.2d 187, 191, 407 N.Y.S.2d 660, 664 (1978). Nor is the court required to issue a lesser included offense charge in "every case in which any distillate of the total proof, however artificial or irrational, would support a conviction of the lesser but not the greater crime. ..." People v. Scarborough, 49 N.Y.2d 364, 373, 402 N.E.2d 1127, 1132, 426 N.Y.S.2d 224, 229 (1980); see also People v. Mongen, 157 A.D.2d 82, 84-85, 555 N.Y.S.2d 260, 261 (1st Dept.) (lesser offense charge properly rejected as not supported by the evidence in the record, since the jury would have been required to engage in speculation to convict defendant of the lesser charge), appeal dismissed, 76 N.Y.2d 1015, 566 N.E.2d 1169, 565 N.Y.S.2d 764 (1990). The standard, therefore, is not whether there is "any view" of the evidence to support a conviction on the lesser offense, but rather, whether there is a "reasonable view" to warrant such an instruction. Scarborough, 49 N.Y.2d at 373, 402 N.E.2d at 1132, 426 N.Y.S.2d at 230. Moreover, as a matter of federal law, a state court's determination of whether a lesser included offense instruction is warranted by the evidence is entitled to a presumption of correctness. See Sumner v. Mata, 449 U.S. 539, 550, 101 S. Ct. 764, 770-71, 66 L. Ed. 2d 722 (1981); Knapp, 46 F.3d at 175; Rosado, 1988 U.S. Dist. LEXIS 7790, at *5, 1988 WL 80226 at *2; see also 28 U.S.C. § 2254(d).
Assault in the third degree can theoretically be a lesser included offense of assault in the second degree. People v. Fugaro, 96 A.D.2d 659, 466 N.Y.S.2d 522, 523 (3d Dept. 1983) (§ 120.00(1), which requires intent to cause physical injury without a weapon, is a lesser included charge of § 120.05(1), which requires intent to cause serious physical injury without a weapon); People v. Alexander, 163 A.D.2d 879, 558 N.Y.S.2d 405, 406 (4th Dept. 1990) (assault in the third degree (N.Y. Penal Law § 120.00(2)) can theoretically be a lesser included offense of assault in the second degree (N.Y. Penal Law § 120.05(7))); Cf. People v. Van Norstrand, 85 N.Y.2d 131, 136, 623 N.Y.S.2d 767, 770, 647 N.E.2d 1275 (1995) (assault in the third degree is a lesser included offense of assault in the first degree). However, relying on state law, the Appellate Division ruled in this case that the trial court "properly refused to charge assault in the third degree as a lesser included offense as there was no reasonable view of the evidence that would support a finding that defendant committed the lesser, but not the greater offense." Caban, 181 A.D.2d at 536, 581 N.Y.S.2d at 42.
The Appellate Division's decision, which affirmed the trial court's view that where the evidence will only allow a conclusion that a weapon was used, third degree assault is an inappropriate charge, is in accord with the most recent decision by the New York Court of Appeals on the issue. See People v. Galvin, 65 N.Y.2d 761, 481 N.E.2d 565, 492 N.Y.S.2d 25 (1985). In Galvin, the court found that "it was not error for the trial court to refuse to charge assault in the third degree [§ 120.00(2)]," where the evidence demonstrated the defendant used a sidewalk as a dangerous instrument. Galvin, 65 N.Y.2d at 762-63, 481 N.E.2d at 566, 492 N.Y.S.2d at 26. See also People v. Johnson, 158 A.D.2d 939, 551 N.Y.S.2d 102, 102-03 (4th Dept.) (charge of third degree assault as lesser included offense was properly denied to a defendant who "poked" a victim with a knife), appeal denied, 75 N.Y.2d 967, 555 N.E.2d 624, 556 N.Y.S.2d 252 (1990); People v. Hubbard, 48 A.D.2d 941, 942, 369 N.Y.S.2d 34, 35-36 (3d Dept. 1975) (court upheld conviction of assault in the second degree under § 120.05(2), since no reasonable view of the evidence would allow a finding that assault was not carried out by means of a deadly weapon. Thus, defendant could not have committed an assault in the third degree without committing an assault in either first or second degree); Cf. People v. Pezzella, 103 A.D.2d 851, 851-52, 478 N.Y.S.2d 76, 77 Dept. 1984) (trial court should have instructed the jury on the lesser included offense of assault in the third degree, where the jury could have reasonably found that neither one of the defendants inflicted cuts by a sharp instrument but only kicked and punched the victim); People v. Richards, 67 A.D.2d 893, 894, 413 N.Y.S.2d 698, 699 (1st Dept. 1979) (trial court improperly refused to submit a third degree assault charge, since the jury might reject a theory that a tray, used by the defendant, was a dangerous instrument). Compare People v. Garcia, 194 A.D.2d 1011, 1013, 599 N.Y.S.2d 669, 671 (3d Dept.) (court upheld a conviction of reckless assault in the third degree, as a lesser included offense, in case where evidence established that defendant used a broken beer glass to cut the victim), appeal denied, 82 N.Y.2d 895, 632 N.E.2d 472, 610 N.Y.S.2d 162 (1993); People v. Hall, 175 A.D.2d 879, 573 N.Y.S.2d 726, 727 (2d Dept. 1991) (court upheld a conviction for assault in the third degree in a case where defendant used a fillet knife to stab the complainant twice in the face), appeal denied, 79 N.Y.2d 858, 588 N.E.2d 764, 580 N.Y.S.2d 729 (1992).
In the present action, no reasonable view of the evidence would have allowed the jury to conclude that the victim's injuries resulted from a weaponless assault.
Both the victim and the witness to the incident testified that Petitioner, standing five to six feet from the victim, possessed a revolver, and that he fired it. (Hart: Tr. at 86, 89; Ervin: Tr. at 126-127, 129.) The evidence established that a bullet passed through the victim's left leg and lodged in her right knee. (Hart: Tr. at 86, 89; Ervin: at 127.) Police Officer Fagan testified that he saw a gunshot wound in Ms. Hart's lower left leg when he approached her in the street out five minutes after the incident. (Fagan: Tr. at 210, 212; Reilly: Tr. at 46.) At the time of the trial, the bullet was still lodged in the victim's right knee (Hart: Tr. at 94), and she had scars on her left leg where the bullet entered and exited, and on her right knee where the bullet entered. (Hart: Tr. at 94.) This case can easily be distinguished from those in which the evidence warranted a lesser included offense instruction of assault in the third degree because uncertainty existed as to whether the defendant actually used a weapon or a dangerous instrument. See, e.g., Pezzella, 103 A.D.2d at 851-52, 478 N.Y.S.2d at 77 (trial court should have allowed instructions as to assault in the third degree, where the jury could have reasonably found that neither one the defendants inflicted cuts by a sharp instrument, but only kicked and punched the victim); Richards, 67 A.D.2d at 894, 413 N.Y.S.2d at 699 (jury might find that a tray was not a dangerous instrument). In this case, the victim's bullet wounds conclusively establish that a weapon was used.
Nor did defense counsel present a theory of the case that would have allowed a jury to reasonably conclude that Petitioner committed a weaponless assault. Indeed, defense counsel merely attacked the credibility of the prosecution witnesses in general terms and raised questions about potential biases. (Tr. at 96-113, 156-157, 160, 224-229.) He also suggested an alternative theory to the court as he argued for the lesser included charge, that an unidentified third party shot the victim. (Tr. at 295.) The defense theory did not give the jury any alternative of finding that Petitioner committed a weaponless crime -- either Petitioner shot Hart using a weapon or an unidentified person committed the crime. Cf. Rosado, 1988 U.S. Dist. LEXIS 7790, at *5, 1988 WL 80226, at * 2 (in a case where witnesses testified that defendant committed a robbery with a knife and defendant denied being involved in a robbery, the court held that there was no reasonable view of the evidence that a jury could believe that a robbery took place, but it was not committed with a knife). Thus, no reasonable view of the evidence could support a conclusion that the incident occurred without a weapon.
In conclusion, since there can be no question that Petitioner used a weapon, consistent with Galvin, the trial court in this case did not err in denying a charge of assault in the third degree as a lesser included offense to assault in the second degree. Since the trial court did not err as a matter of state law, the petition presents no federal claim that could warrant habeas relief.
For the above reasons, I respectfully recommend that the petition for writ of habeas corpus be denied.
Pursuant to 28 U.S.C. § 636(b) (1) (C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6(a) and 6(e). Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable John E. Sprizzo, United States District Judge, and to the chambers of the undersigned. Any requests for an extension of time for filing objections must be directed to Judge Sprizzo. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 121 L. Ed. 2d 696, U.S. , 113 S. Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).
Dated: June 15, 1995
New York, New York
Theodore H. Katz
United States Magistrate Judge