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August 13, 1996

STEVEN BRIECKE, Petitioner, against PEOPLE OF THE STATE OF NEW YORK, Respondents.

The opinion of the court was delivered by: WEXLER

 WEXLER, District Judge

 Steven Briecke ("petitioner"), an inmate at the Sing Sing Correctional Facility, has brought the above-referenced action, pursuant to 28 U.S.C. § 2254, seeking a writ of habeas corpus. Petitioner was found guilty by jury verdicts on June 3, 1985 of burglary in the first degree, assault in the first degree, and grand larceny in the third degree, and was thereafter sentenced to concurrent terms of five to fifteen years and eight-and-a-third to twenty-five years for the burglary and assault, respectively, and a consecutive term of one-and-a-third to four years for grand larceny. His conviction was affirmed by Appellate Division, see People v. Briecke, 143 A.D.2d 1025, 533 N.Y.S.2d 584 (App. Div. 2d Dep't 1988), and leave to appeal to the New York Court of Appeals was denied. Petitioner's motion to vacate judgment was denied, as were his motions to reargue and appeal therefrom. This petition followed.


 The evidence at petitioner's trial established the following facts: At five o'clock p.m. on September 28, 1984, Ann Giangrande, a seventy-five year old women, observed petitioner pacing the street in front of her home in West Islip, New York. Trial Transcript ("Tr.") at 17. At ten o'clock that evening, Ms. Giangrande, who lived alone, heard petitioner at her door, demanding to be let in. Tr. at 15-16. Ms. Giangrande locked the door and attempted to telephone for help. Tr. at 16. To her surprise, the telephone was dead, even though it had been working an hour before. Tr. at 18. Detectives would later find telephone wires severed outside her home. Tr. at 131.

 Ms. Giangrande then opened a bedroom window and called to a neighbor for help. Tr. at 19. She was met at the window, however, by petitioner who smashed her face with an object. Id. Blinded by her own blood, Ms. Giangrande struggled to retreat. Id. She made her way into another bedroom before being overtaken by petitioner, who had entered the dwelling through the window. Id. He placed a blanket over her head, explaining, "I don't want you to see my face." Tr. at 20. Ms. Giangrande testified that she recognized the voice as the same voice she had heard at the front door. Id.

 Petitioner demanded, "I want your money [and] jewelry." Tr. at 21. He took $ 340 in cash, a watch, a bracelet, and several rings. Tr. at 24-26. He used water as a lubricant to remove the rings from Ms. Giangrande's fingers. Tr. at 25.

 By this time, police had surrounded the house, and were knocking on the front door. Tr. at 66, 72. Hearing the knock at the front door, petitioner ran to the back door. Tr. at 73. But he found police there as well. Id. Desperate, petitioner decided to hide in a bedroom closet. Tr. at 76.

 Police then entered the home, escorted Ms. Giangrande outside, and with guns drawn ordered petitioner out of the closet. Petitioner emerged shouting, "Kill me. Kill me. I don't care. Go ahead and kill me." Tr. at 78. An officer grabbed petitioner by his shirt and struck him with his gun. Id. Petitioner staggered slightly, but broke loose and ran toward the window. Id. Arms outstretched, petitioner dived headlong into the glass pane. Tr. at 79. Police were able to grab his legs and pull him back into the home. Id. After a short, but violent struggle, petitioner was handcuffed, placed under arrest, and taken by ambulance to Good Samaritan Hospital. According to the arresting officers, petitioner was rational once he stopped struggling and understood he was with police officers.

 Detectives found the light bulbs unscrewed in front-porch lamps, which Ms. Giangrande believed to have been lit earlier in the evening. Tr. at 68, 132.

 Petitioner testified that since the age of sixteen he had attempted suicide several times and that he had checked himself into the VA Hospital in Northport for a week. Tr. at 170-71. On cross-examination, he admitted that he had actually been taken there by police. Medical records from the Northport VA Hospital indicate a diagnosis of "anti-social personality disorder," and medical records from another admission to Kings Park Psychiatric Hospital indicate a diagnosis of "episodic explosive disorder." Tr. at 225-26, 253.

 Petitioner testified that since his army discharge, he had been arrested for a number of misdemeanors, including unauthorized use of a motor vehicle, petit larceny, and reckless endangerment in the second degree. Tr. at 190, 197.

 Petitioner denied that he was walking up and down in front of the victim's house at five o'clock, but supported this denial only with the fact that he owns a car. Tr. at 184. He also testified that he "knew the inside of [Ms. Giangrande's] house like the back of [his] hand." Tr. at 184.

 Petitioner was hospitalized for a week following the incident and was later seen by prison psychiatrists, who prescribed lithium and thorazine. Tr. at 234.

 In addition to petitioner's testimony, the defense relied on the testimony of Dr. Tsu Teng Loo, a psychiatrist for twenty years at Pilgrim State and Central Islip Psychiatric Centers. Dr. Loo is not board certified in forensic psychiatry and had testified in criminal cases as an expert only four times prior to the petitioner's case. Tr. at 217, 240-41. Dr. Loo diagnosed the petitioner as having bi-polar affect disorder, in the form of manic depression, and acute brain syndrome as the result of the ingestion of muscle relaxants and alcohol. Tr. at 223, 255. He also testified that the ingestion of drugs and alcohol could trigger mood swings in a manic depressive, and that "at the time of the alleged crime, [petitioner] was not mentally capable of understanding what he was doing and that what he was doing was wrong." Tr. at 238.

 The prosecution's rebuttal witness was Dr. Harold Zolan, a psychiatrist for forty years who is board certified in forensic psychiatry. Trial Transcript, Volume II ("Tr. II") at 26. He had testified in criminal cases over 350 times for both the prosecution and defense. Dr. Zolan diagnosed petitioner as having an atypical character disorder and multiple substance abuse. Tr. II at 35. It was Dr. Zolan's opinion that petitioner had the complete ability to "know and appreciate the nature and consequences of his conduct and whether that conduct was wrong." Tr. II at 39. He further testified that petitioner neither suffered from bi-polar depression nor acute brain syndrome and that he doubted alcohol and muscle relaxants could ignite a psychotic state in a bi-polar depressive person. Tr. II at 43, 51. As to petitioner's prior hospitalizations, Dr. Zolan testified that these were for personality disorders not mental diseases. Tr. II at 44.

 The trial judge charged the jury as to the elements required for burglary in the first degree, grand larceny in the third degree, assault in the first degree, and the lesser offense of assault in the second degree. Tr. II at 115-30. The judge also gave instructions on intoxication and insanity defenses. Tr. II at 130-46.

 The jury returned guilty verdicts. At sentencing, the judge found that the grand larceny was a separate and distinct crime from the burglary, even though both crimes occurred simultaneously. Tr. II at 119.

 After exhausting his remedies at the state level, petitioner filed the instant petition for collateral relief. He advances four grounds in support of his petition: (1) that he was denied a fair trial as a result of prosecutorial misconduct; (2) that he was denied effective assistance of counsel; (3) that his guilt was not proven beyond a ...

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