of his sister, Grace, who was bedridden, and began putting jewelry and trinkets in a pillowcase and demanding money from Grace. Id.
Joseph Bellantone testified that his sister Rose Manzella then came into the apartment. Id. The shorter of the two men grabbed her by the throat and put her on the bed in Grace's room. Id. Terry Moore found $ 2,000 in one of Grace's drawers and put it in his stocking. Id. At that time, Grace tipped over the phone, and the shorter man handed Terry Moore a knife to cut the phone cord. Id. Terry Moore then placed the knife to Grace's neck and said "that's how I could cut your throat too." Id. Later, he picked up the mattress on which Grace was lying, throwing her against the wall. Id. Finding no money, he grabbed Joseph Bellantone and demanded to know where more money could be found. The shorter man then came into the room and said "come on . . . let's go." Id.
Joseph Bellantone testified that the entire incident lasted approximately thirty minutes. Id. When the two men left the apartment, they took Joseph Bellantone to the vestibule. Id. After they existed, one of them tried to reenter the house but Joseph Bellantone locked the door. Id. at 3-4. Joseph Bellantone then went to the window and saw a car speed away. Id. at 4.
Rose Manzella identified Terry Moore, in a lineup and at trial, as one of the two men who had robbed the home of her brother and sister. Id. She testified that, after she entered the apartment, the men told her "we have weapons" and that she saw both men with knives. Id. The "short fella" handed the "tall fella" a knife, and the "tall fella" cut the phone cord. Id. She testified that the incident lasted approximately twenty minutes.
Roberto Gonzalez ("Gonzalez"), a stockbroker and lieutenant in the Army Reserves who lived across the street from the Bellantones, testified that he was walking his dog on May 25, 1982 at approximately 11:20 a.m. Id. He noticed a man in front of the Bellantones' house looking at a piece of paper. Id. Gonzalez saw the man, whom he described as six feet three inches tall, weighing 165-175 pounds, wearing a maroon windbreaker, cap, dungarees and sneakers, enter the Bellantone house. Id. He then noticed a "bluish greenish" Plymouth Fury idling on Duncan Avenue. Id. His attention was drawn to the car because there are no stop signs on Duncan where the car was stopped. He testified that he looked at the driver, "eye to eye," from approximately fifteen feet away for eight to ten seconds. Id. He made an in court identification of Stanley Moore as the driver of the car. Id.
Gonzalez testified that he then began to look for his dog and heard the car "screech out from behind and start up towards Paulding, towards 3235 [the Bellantone house]," where it stopped. Id. at 4-5. He then saw two men running out of the Bellantone residence. One of them stopped and tried to reenter the house. Id. at 5. The two men then ran to the car. Id. Gonzalez concentrated on the license plate number of the car, which he later gave to the police. Id. He testified that the entire event, beginning with his observation of a man entering the Bellantone house, lasted approximately seven minutes. Id.
Peggy Lee, who lived next door to the Bellantones, testified that she was taking out her garbage at approximately 11:20 or 11:30 a.m. when she noticed a "bluish green" car with the passenger side door open. Id. She continued on her way to take the garbage out and then saw the car in front of the Bellantone house and saw "a guy get out of the car, stand up and he was saying, 'Come on. Come on. Come on. Let's go. Let's go. Let's go.'" Id. The man was facing the Bellantone house. Id. She identified Stanley Moore, in court, as the man she saw in the car. Id. She then saw "two black men -- young boys -- running out of Joe's house down the steps and they was laughing [sic]. They got in the car and it pulled off." Id. On cross-examination, defense counsel elicited that Lee had testified at the Grand Jury that she saw two people go into the Bellantone house and then saw them come out three to five minutes later. Id.
Linda Ray, the assistant manager of the Williams Garage, testified that she kept the records of the cabs that were leased by the garage to the drivers. Id. She testified that Stanley Moore began leasing cars from the company in April of 1982. Id. He leased a bluish-green 1975 Fury with the license plate number L-47690 on May 25, 1982. Id. at 5-6. The car was returned to the garage on May 31, 1982 by someone other than Stanley Moore. Id. at 6.
Police Officer Ronald Mafaraci testified that he tested the Bellantone house for fingerprints following the robbery and found one latent print on the television set. Id. Police Officer Joseph Bergen testified that he compared the print recovered by Officer Mafaraci to the prints of Joseph Bellantone, Armando Morales and Terry Moore and that none of these prints matched the one recovered. Id.
Defendant Stanley Moore testified on his own behalf. Id. He testified that he was a cab driver, that he drove the Plymouth Fury until May 30, or May 31, 1982 and that he stopped driving it when it broke down on the Triboro bridge. Id. He called his boss, and they went together the next day to retrieve it. Id. He had driven the car on May 25, 1982, but he did not recall whether he drove it at night or during the day on that date. Id. He also testified that he checked the cab out for twenty-four hour periods and that, since he did not generally drive more than sixteen hours at a time, he sometimes allowed his friends Rob Ferguson and Frederick Hamilton to drive the cab during the twenty-four hour period. Id. He did not recall being in the vicinity of 3235 Paulding Avenue on May 25, 1982 and did not recall picking up his brother, Terry Moore, on that date. Id. He testified that he was twenty-six years old and had previously been convicted of two felonies when he was sixteen and seventeen years old. Id. at 6-7.
Frederick Hamilton testified that he had rented cabs from Stanley Moore, including the Plymouth Fury, on "quite a few" occasions. Id. at 7. Defendant Terry Moore did not testify, but was allowed to exhibit himself to the jury. Id.
On summation, petitioner's counsel argued that Stanley Moore's testimony that he did not recall being at 3235 Paulding on May 25, 1982, was honest. Id. He argued that, even if Stanley Moore had been on the street that day and had picked up two passengers, that would not indicate the he was involved in the robbery but would be consistent with his job of driving a cab. Id. He pointed out that, while Lee testified that she saw the passenger door of the car open and saw Moore standing outside the car yelling "come on" and "let's go," her testimony should be discounted because it conflicted with that of Gonzalez, who did not see the passenger door open and did not see Moore get out of the car and yell towards the Bellantone house. Id.
Counsel for Terry Moore argued that Moore, who was five feet eleven inches tall and weighed one hundred and fifty-five pounds did not fit the description given by the witnesses, and he argued that none of the witnesses noticed Moore's missing front tooth. Id. He also pointed out that Joseph Bellantone and Rose Manzella testified that the entire incident lasted twenty to thirty minutes and that there were many people on the street following the incident, while Gonzalez testified that the incident lasted approximately seven minutes and that there were no other people on the street. Id. at 7-8. Counsel also pointed out that Roe Manzella testified that there were two knives while Joseph Bellantone testified that there was only one. Id. at 8. He argued that their identification of Terry Moore was unreliable because of these discrepancies in their perception of the events, which may have been impaired by their age and the traumatic nature if the event. Id.
II. Magistrate Judge Gershon's Findings
As previously stated, Magistrate Judge Gershon addressed and rejected the merits of each of petitioner's claims, and recommended that Moore's petition be denied. This Court will conduct a de novo review of each of petitioner's claims individually.
A. Sufficiency of the Evidence
In his petition, Moore asserts that the prosecution failed to prove his guilt beyond a reasonable doubt. The law is settled that in a federal habeas corpus proceeding challenging the sufficiency of the evidence underlying a state court conviction, the federal court must determine whether the evidence was sufficient to support a finding of guilt beyond a reasonable doubt, with explicit reference to the substantive elements of the criminal offense as defined by state law. Jackson v. Virginia, 443 U.S. 307, 324 n.16, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). For a court making such a determination, "the relevant question is whether, 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." Id. (quoting Woodby v. INS, 385 U.S. 276, 282, 17 L. Ed. 2d 362, 87 S. Ct. 483 (1966)) (emphasis in original). Under this standard, "the trier of fact is left to fairly resolve conflicts or discrepancies in the testimony by weighing evidence and drawing inferences." Id.
Moore was convicted of burglary in the first degree and robbery in the first degree based on the theory of accomplice liability. The jury was charged, under New York Penal Law Section 20.00 that
When a person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.
Petitioner argues that "the evidence showed only that petitioner, an authorized taxi driver, picked up two passengers who exited a residence where it was later discovered that a burglary robbery was committed." (Petition at 5.) Moore claims that there was no evidence produced at trial to show his intent to commit robbery or burglary, and that the jury therefore could only speculate as to his involvement in the crime.
Under New York law, in order to be held liable as an accomplice, there must be adequate proof of shared intent with the principal actor." People v. McLean, 107 A.D.2d 167, 169, 485 N.Y.S.2d 1019 (N.Y. App. Div.), aff'd, 65 N.Y.2d 758, 492 N.Y.S.2d 31, 481 N.E.2d 571 (N.Y. 1985). The "shared intent" test "merely establishes that acts undertaken in relevant innocence and without a conscious design to advance the principal's crime will not support a conviction for accomplice liability." People v. Kaplan, 76 N.Y.2d 140, 145, 556 N.Y.S.2d 976, 556 N.E.2d 415 (1990).
A review of the record in the light most favorable to the prosecution reveals that a rational factfinder could have found petitioner guilty beyond a reasonable doubt as an accomplice to the burglary and robbery of Joseph and Grace Bellantone. The evidence did not establish merely that petitioner was at the scene of the crimes, People v. Parke, 191 A.D.2d 992, 595 N.Y.S.2d 162 (N.Y. App. Div.), appeal denied, 82 N.Y.2d 724, 602 N.Y.S.2d 821, 622 N.E.2d 322 (N.Y. 1993); People v. Taylor, 141 A.D.2d 581, 529 N.Y.S.2d 191 (N.Y. App. Div.), appeal denied, 72 N.Y.2d 962, 534 N.Y.S.2d 675, 531 N.E.2d 308 (N.Y. 1988), but rather established that petitioner idled his car on the street near the Bellantone residence, screeched forward to bring the car in front of the residence, yelled towards the Bellantone residence and entered the car after the burglary and robbery. This Court thus finds that this is not a case in which the evidence shows only that a cab driver picked up strangers unaware that they had committed crimes because the evidence produced at trial provided sufficient evidence for any rational trier of fact to find the essential elements of the crimes with which Moore was charged beyond a reasonable doubt. Accordingly, this Court finds that Moore's claim that the prosecution failed to prove his guilt beyond a reasonable doubt, is meritless and should be denied.
B. Jury Charge
Petitioner argues that he was deprived of a fair trial by three errors made by the trial court in its charge to the jury. The scope of review on a habeas petitioner's claim that he was deprived of a fair trial by errors in the charge to the jury is very narrow. Estelle v. McGuire, 502 U.S. 62, 73, 116 L. Ed. 2d 385, 112 S. Ct. 475 (1991). In reviewing a claim that a jury charge was erroneous, the Supreme Court in Estelle stated the standard as follows:
The only question for us is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973); see also Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 97 S. Ct. 1730 (1977); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974) ("'It must be established not merely that the instruction is undesirable, erroneous, or even "universally condemned," but that it violated some [constitutional] right.'") It is well established that the instruction "may not be judged in artificial isolation" but must be considered in the context of the instruction as a whole and the trial record. Cupp v. Naughten, supra, 414 U.S. at 147.