(4) that his sentence was excessive and not authorized by statute.
A. Prosecutorial Misconduct
Petitioner argues that the prosecution's failure to disclose exculpatory evidence prior to trial violated his constitutional right to a fair trial. Indeed, the suppression by the prosecution of evidence favorable to an accused violates due process. Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). However, "where defendants have ready access to evidence that may be exculpatory, they cannot complain that it was withheld in violation of Brady." United States v. Jones, 712 F.2d 115, 122 (5th Cir. 1983).
In the instant case, the allegedly undisclosed evidence was the result of a blood-alcohol test administered to petitioner at Good Samaritan Hospital on the night of his arrest. This record was readily accessible to either party, and could easily have been obtained by defense counsel. In fact, the trial record reflects that it was obtained by defense counsel. Pursuant to a subpoena issued by the trial judge, defense counsel had obtained petitioner's past medical records from Northport VA Hospital, Kings Park Psychiatric Hospital, and the records of his admission to Good Samaritan Hospital on the night of the arrest. Tr. at 107-108, 152-154. It was from defense counsel that the prosecution acquired some of these records, including the one at issue. See Tr. at 107-108.
Whether the prosecution acquired the test result from defense counsel or through its own efforts, the test result could have been obtained by either party through diligent discovery. Nothing in the record indicates otherwise. Accordingly, there was no Brady violation.
B. Ineffective Assistance of Counsel
Petitioner asserts that had his attorney not made errors prior to and during trial he would not have been convicted. He points to three errors: (1) counsel's failure to object to the prosecution's withholding of evidence; (2) counsel's failure to conduct a factual or legal investigation to determine whether a defense other than insanity could be developed, and (3) counsel's failure to object to the charge to the jury on intoxication.
In order to show ineffective assistance of counsel, a petitioner must demonstrate: (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's error, the result in the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-96, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Petitioner must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
1. Failure to Object to Withholding of Evidence
Because the Court has determined that the prosecution did not improperly withhold evidence at petitioner's trial, defense counsel's decision not to raise that issue with the trial judge was not an unreasonable one, and petitioner was not prejudiced thereby.
2. Failure to Investigate Potential Defenses
Petitioner claims that counsel failed to conduct a factual or legal investigation sufficient to determine whether a defense other than insanity could be developed.
The Constitution imposes on counsel a duty to "make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. If counsel chooses one particular defense over others, his decision not to investigate those not chosen must be "assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgement." Id.
Although the petition does not specify which defenses petitioner believes his attorney should have "developed," a review of the record indicates that counsel could have pursued an insanity defense or an intoxication defense. Counsel chose to pursue the former, and not the latter. Presumably, petitioner would argue that, had his attorney conducted a proper investigation, it would have been clear that the latter was the more appropriate defense.
The trial record indicates, however, that there were serious impediments to raising any defense based on petitioner's inability to form the requisite criminal intent. Petitioner's testimony that he voluntarily ingested alcohol on the night of the crime foreclosed the possibility of an involuntary intoxication defense. Petitioner also testified that he did not believe that he was not an alcoholic. Tr. at 183. Circumstances of the crime weakened the viability of a voluntary intoxication defense. Pacing in front of the victim's home to determine the best method and time for attack, unscrewing lightbulbs on the porch and placing a blanket over the victim's head to prevent identification, dampening the victim's fingers to remove her rings are not the marks of a perpetrator who is incapable of forming a criminal intent. In addition, the blood-alcohol test taken on the night of the arrest -- the one that petitioner considered so gravely important to his defense -- revealed a reading of .1067, a blood-alcohol level only slightly above the legal intoxication level.
On the other hand, there was support for an insanity defense based not only upon petitioner's statements to Dr. Loo during a pre-trial psychiatric evaluation -- an evaluation from which Dr. Loo diagnosed petitioner as mentally diseased -- but also upon petitioner's actions during the crime. Insisting that the police kill him rather than arrest him, and diving through a pane of glass are acts supporting an insanity defense. In addition, counsel's investigation uncovered that petitioner's family had a history of mental disease, that petitioner had problems with severe mood swings, that petitioner had visited mental clinics, and that petitioner had made attempts at suicide. Petitioner's medical records indicated a history of psychiatric problems.
In light of these findings, counsel's strategic decision to pursue an insanity defense, and not to conduct a substantial investigation into an intoxication defense, was informed and reasonable. Counsel did not breach his duty to investigate.
Petitioner relies on Beavers v. Balkcom, 636 F.2d 114 (5th Cir. 1981). The attorney in Beavers was deemed constitutionally ineffective because he pursued an insanity defense without having first obtained his client's medical records and without calling his client's psychiatrist to the witness stand. The defense case included only the testimony of defendant's mother and wife, and the unsworn testimony of the defendant. The instant case is distinguishable because petitioner's counsel subpoenaed all medical records, ordered a psychiatric evaluation, and called the psychiatrist to testify at trial.
3. Failure to Object to the Jury Charge
Petitioner insists that the charge to the jury "did not allow them (sic) to consider the level of intent even though the court found it necessary to charge on intoxication," and argues that his attorney's failure to object to this flaw constituted ineffective assistance of counsel. Petition, at 5.
The trial judge charged the jury as follows:
In any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged. . . . An intoxicated person is not relieved of criminal responsibility for his conduct merely because he was drunk when he committed a particular crime. . . . However, this law does provide that evidence of intoxication may be considered by you the jury in determining whether a defendant in fact possessed the requisite intent which is an essential element of the crime charged. In other words, you the jury may consider evidence of defendant's intoxication in determining whether or not the mind of the defendant was so obscured by drink or drugs or a combination that he was incapable of forming the particular criminal intent which the law makes an element of the crime charged. . . . The prosecution must prove beyond a reasonable doubt that the defendant had the requisite intent to commit a crime in the dwelling and to steal the property and to knowingly enter the dwelling.
Although it is difficult to discern the precise nature of petitioner's problem with the charge, the Court determines that the above-quoted portion contains no infirmity so severe as to mandate an objection from counsel. Petitioner's counsel was not unreasonable in choosing not to object to this portion of the charge.
In sum, for the above-reasons, petitioner has failed to establish that his attorney acted unreasonably in his defense. For the same reasons, petitioner has failed to establish that he was prejudiced by the conduct of his counsel. Accordingly, he is not entitled to habeas corpus relief on ineffective-assistance-of-counsel grounds.
C. Insufficiency of the Evidence
Petitioner contends that the evidence at trial was insufficient to prove his guilt beyond a reasonable doubt. The Supreme Court has held that the Fourteenth Amendment is violated when a person is convicted without "sufficient proof." Green v. Abrams, 984 F.2d 41, 44 (2d Cir. 1993) (citing Jackson v. Virginia, 443 U.S. 307, 316, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979)). The sufficient-proof standard is satisfied where, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis omitted).
In determining whether evidence is sufficient to support a criminal conviction, a federal court must look to state law to determine the elements of the crime. Green, 984 F.2d at 44 (citing Jackson, 443 U.S. at 324 n.16). Petitioner was convicted of burglary in the first degree, assault in the first degree, and grand larceny in the third degree.
Under New York law,
a person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime: (1) is armed with explosives or deadly weapons; or (2) causes physical injury to any person who is not a participant in the crime; or (3) uses or threatens the immediate use of a dangerous instrument; or (4) displays what appears to be a firearm.