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EL v. ARTUZ
June 30, 2000
RHAGI EL, PETITIONER,
CHRISTOPHER ARTUZ, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Chin, District Judge.
Pro se petitioner Rhagi El petitions this Court for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his April
3, 1996 conviction in the Supreme Court of the State of New York,
New York County, for criminal possession of a weapon in the
second degree (N.Y.Penal L. § 265.03), criminal possession in the
third degree (N.Y.Penal L. § 265.02(4)), assault in the first
degree (N.Y.Penal L. § 120.10(3)), and assault in the second
degree (N.Y.Penal L. § 120.05(4)). For the reasons set forth
herein, the petition is dismissed.
The evidence adduced at El's trial*fn1 established that
shortly after 7:00 p.m. on January 3, 1995, Thomas McCray, Jr.,
Ronnie Terry, George Townsend, and Keith Warren had gathered on
the corner of 149th Street and Amsterdam Avenue. Several others
were at the corner, including a man later identified as El.
Gunshots broke out. McCray, who had his back turned toward El,
heard several gunshots. Terry also heard a shot from somewhere
behind him. Warren saw El holding a weapon and heard gunshots.
McCray, Terry, and Warren immediately took flight. McCray was
hit by a bullet in his left calf, and was shot again in the other
leg as he attempted to flee. Realizing that McCray needed
assistance, Terry stopped to help McCray into a building while
Warren fled the scene.
Police officers Carlos Morel and Anderson Moran were patrolling
the area in a police car. The officers were stopped at a traffic
light at the intersection of Amsterdam Avenue and 150th Street at
approximately 7:30 p.m. when they heard gunshots and saw flashes
of light coming from the corner of 149th Street and Amsterdam
Avenue. As they approached the corner, Morel and Moran noticed
that El remained in the area as the others ran away. The officers
drove toward El, who took flight at the officers' approach.
B. State Court Proceedings
1. The Proceedings in the Trial Court
El waived his right to be represented by counsel in his
criminal trial in the Supreme Court, New York County, choosing to
defend himself pro se. El's previously assigned counsel was
appointed by the court to an advisory role. Following a jury
trial, El was convicted on two counts of criminal possession of a
weapon and two counts of assault.
After the verdict was taken, the trial court (Figueroa, J.) set
a sentencing date and remanded the defendant. The court then made
the following comments to the defendant:
I'll speak to you quite frankly, that I [don't] know
the circumstances or what was your mentality at the
time that these alleged acts were perpetrated. Much
is going to depend, as far as your sentence is
concerned, on how you relate to the Probation
Department when they interview you.
I myself, being perplexed as I am, would like some
explanation of the surrounding circumstances of your
firing the weapon. If I don't get what I consider [a]
worthy explanation, a sincere explanation, you are
going to feel it on sentencing.
Conversely, if you could shed some light on what
happened and give me some sort of explanation — not
explanation, but an understanding of the situation, I
will also take that into account.
In other words, be sincere with the Probation
Department. Because if you don't. I'll tell you right
now, it's going to cost you. I want you to be
(Resp.Ex. D, Tr. at 877-78).
In response to the court's comments, El sought to raise a
concern about the impact his statements might have on his appeal.
The court told him that his chances of prevailing on appeal were
THE DEFENDANT: Isn't that what — wouldn't that be
costly to my appeal, admitting —
THE COURT: Yes. But now you have been convicted of
firing that weapon indiscriminately by this jury,
after what I consider a fair trial. Don't count too
much on your appeal, because meanwhile you'll be
Think of the [here] and now, especially at least in
my view, and you can discuss this with your lawyer,
when you[r] appeal is really a very dim prospect for
There is no doubt in this jury's mind, as there is
no doubt in anyone else's mind, that you fired that
weapon indiscriminately and that's, in effect, what
you are convicted of.
You weren't convicted of the top count. And you
definitely possessed a weapon.
So, I don't see how you could get around those
facts on appeal.
So, you want to concentrate on the appeal, do so.
But I think I put my position on the record. You
could consider my position or not consider it.
But right now I am really perplexed about what
If I remain perplexed, it's going to cost you. I am
not asking you — saying you have to give me an
explanation, but I am perplexed and when I am
perplexed, I resolve all doubt against the accused.
It's simple. You don't have to do anything.
All right. You have anything else you ...