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April 3, 1998

JULIO FERNANDEZ, Petitioner, against CHARLES DUFRAIN, Superintendent, Respondent.

The opinion of the court was delivered by: PECK


 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Lewis A. Kaplan, United States District Judge:

 Petitioner Julio Fernandez was convicted of attempted second degree murder and sentenced to six to twelve years imprisonment, when he fired three shots into a group that included the victim and her friends, shooting the victim in the chest. Fernandez's habeas corpus petition argues that his conviction violates the Fourteenth Amendment because the prosecutor did not prove who his precise target was, and he alleges that there is no crime of attempted "transferred intent" murder. (see Petition P 12(A); see also Fernandez Br. at 8-11.) Fernandez claims that an attempt to kill someone other than the victim that results in injury to the victim is not attempted murder of the victim (although it may be attempted murder of the intended target). Liberally read, Fernandez's petition and supporting brief appear to raise two separate but related issues: (1) the sufficiency of the evidence that Fernandez intended to kill anyone, and (2) whether attempted transferred intent murder is a crime under New York law. For the reasons set forth below, I recommend that the Court deny petitioner Fernandez's habeas corpus petition.


 The Indictment

 Fernandez was indicted for, inter alia, second degree murder, as follows:

"The defendant, Julio Fernandez, on or about August 2, 1990, in the County of the Bronx, with intent to cause the death of a person, did attempt to cause the death of Yanira Correa by shooting her in the chest with a loaded pistol."

 (Affidavit of ADA Nancy Killian, Ex. 1: Fernandez 1st Dep't Br. at 3, quoting indictment; accord, Killian Aff. Ex. 3: Fernandez N.Y. Ct. App. Br. at 4; see also Killian Aff. Ex. 2: Gov't 1st Dep't Br. at 13.

 The Trial Evidence

 On August 2, 1990 at approximately 2:00 A.M., Fernandez approach Yanira Correa and her friends on 164th Street, the Bronx. (A5-9, A17-18, A20-23, A51-54.) *fn1" Fernandez told Correa that he wanted her to go to the park with him to talk to his brother. (A9, A17.) Correa refused, saying she was going home. (A9.) Correa knew Fernandez and his brother before that night, and she described this conversation as "friendly." (A17-18.)

 One of the boys in Correa's group said something to Fernandez. (A10, A19.) Fernandez was handed a gun by one of the girls he was with, and he fired three shots into the air. (A10-12, A24, A26-28, A43, A56-57.) After the first shot, one of the guys in Correa's group yelled at Fernandez, "why don't you shoot at us?" (A56-60, A69.) Fernandez then fired near the group of people. (A45, A69.)

 After this first incident, Correa and her friends continued walking along 164th Street towards the Grand Concourse. (A29.) Around fifteen minutes after the first incident, one of Correa's friends, Ms. Virella, saw Fernandez get out of a white car and begin to shoot in the group's direction. (A34-39, A45-48, A65-66, A70.) Fernandez had changed his shirt and put on a baseball cap. (A38, A47.) Fernandez fired three shots, one of which hit Correa in the chest. (A13-16, A39-40, A48, A64, A103-04.) Virella "started screaming Julio's [Fernandez's] name." (A40, A64.) Fernandez ran away and escaped in a cab. (A40, A49, A64-65.) The police came, and an ambulance took Correa to the hospital. (A40, A67, A88-89.) The emergency room doctor testified that Correa's wound was only about an inch from Correa's heart and posed a "great risk of death." (A113-14.)

 Fernandez was arrested in a nearby park, and the police recovered a gun from a garbage can where a witness had seen Fernandez drop it. (A71-78, A83-85, A91-95.)

 Trial Motions and Summation

 At the close of the People's case, the defense made a pro forma motion for a trial order of dismissal on the ground that the People failed to establish a prima facie case. (A120-21.) The trial judge denied the motion. (A121-23.)

 During a preliminary charge conference, the Assistant District Attorney requested a "transferred intent charge":

[ADA] GILL: . . . Judge, first I would ask that you give a transferred intent charge. I believe that it would be helpful to the jury; I think it's appropriate in this case. If the jury were to find that the defendant was the shooter on the Grand Concourse, and did in fact shoot Yanira Correa, they may have a problem with, "Well, why was he intending to shoot her?" It's my theory that he intended to shoot at the crowd, probably her boyfriend, but that intent to strike someone in the crowd can be transferred to the person who was actually hit. I think that would be helpful to the jury.

 (A134, emphasis added.) The trial judge responded:

THE COURT: I mean frankly, I have difficulty -- the problem in this case is that there is a lack of testimony about reason, motive; and so it seems to me that either of you can make any argument.

 (A135-36.) The judge added that he thought the intent evidence was "minimal at best" and that the case was "close to a recklessness case." (A141-42.) However, when defense counsel argued that there was no evidence that Fernandez intended to kill anyone, the trial judge responded, "except for the fact that the gun was fired and it hit her," i.e., Ms. Correa. (A136.) The trial judge indicated he would charge the jury, as follows:

THE COURT: . . . The issue that they have to find is, was there an intent to kill someone. And they can determine what the intent was from all of the evidence connected with the incident. And if they find that there was an intent to kill, then they can go on to determine whether or not someone was in fact -- with respect to Count Two, that someone was in fact seriously physically injured; and with respect to Count One, whether that resulted in an attempt: that is, conduct which did not result in, but could have led to the death of the complaining witness.


 The defense renewed its motion to dismiss the attempted murder count, on the ground that there was no evidence that Fernandez intended to kill anyone. (A144-51.) The prosecutor argued that the jury could infer intent from the shots in the air and "why don't you shoot at us" aspects of the first incident, and then Fernandez's firing three shots point blank into the group in the second incident, hitting Correa near her heart. (A151-55.) The trial court denied the defense motion, finding that the deliberate shooting into the group in the second incident "establishes an intent to . . . kill someone in the group." (A158-59; see also A160-61.)

 In summation, the prosecutor explained the crime thusly:

[ADA] GILL: Ladies and gentlemen, what we have here, as I said in my opening, is a senseless shooting for no good reason. That doesn't mean it didn't happen this way.
What we have here is a defendant who thinks that he can gain the respect of another group of kids, gain the attention of another group of kids by taking out a gun and firing some shots in the air. . . .
Ladies and gentlemen, thinking that he's going to maybe intimidate them, scare them, get their attention, get some respect. But instead, the opposite happens. They ridicule him. Hey, Julio, [why] don't you shoot at us. They're not scared. . . .
What the defendant does, that's criminal, ladies and gentlemen. And he's not going to fire in the air any more. He's going to bring his hands down and fire in the direction of the group, just a few feet away from where Gloria [Virella] is standing. He's firing two more shots.
He wants the respect of these people, he's being dissed. He's being disrespected in front of the two girls he's with. . . . He knows these people. He has to save face. He's going to fire two shots in their direction.
What happens? More words, more words from these guys. They don't even run. A few of the girls run. They don't even run. Disrespect. He wanted their respect. He's going to get their respect, even if he has to kill somebody.
* * *
MR. GILL: But what happened next, ladies and gentlemen? This whole thing keeps escalating. It just keeps ...

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