Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

GIRALDI v. BARTLETT

United States District Court, Southern District of New York


August 2, 2000

NEAL GIRALDI, PETITIONER,
V.
GEORGE BARTLETT, SUPERINTENDENT, ELMIRA CORRECTIONAL FACILITY, RESPONDENT.

The opinion of the court was delivered by: Berman, District Judge.

ORDER

On September 13, 1995, Neal Giraldi ("Petitioner" or "Giraldi"), proceeding pro se,*fn1 filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. § 2254, challenging his 1975 conviction in New York Supreme Court, Westchester County, for murder in the second degree, assault in the second degree, and possession of a weapon as a misdemeanor. Petitioner alleges three grounds for habeas relief:, (i) deprivation of his due process rights by virtue of the trial court's jury instructions concerning his insanity defense; (ii) deprivation of his due process rights by virtue of the District Attorney's refusal to disclose certain alleged Rosario material; and (iii) deprivation of his Sixth Amendment rights by virtue of alleged ineffective assistance of his appellate counsel.*fn2 Petitioner's ineffective assistance of appellate counsel claim is a derivative of his first two claims: it is the alleged failure of his appellate counsel to raise on direct appeal the trial court's jury instructions on the insanity defense and the State's failure to disclose certain alleged Rosario material.*fn3

In his Report and Recommendation dated December 11, 1996 (the "Report"), United States Magistrate Judge Leonard A. Bernikow recommended denial of Petitioner's first two claims (the due process challenges concerning jury instructions and failure to provide Rosario material). Yet, despite this recommendation as to Petitioner's first two claims, Magistrate Bernikow also determined that there had been ineffective assistance of appellate counsel.*fn4 He concluded "that the writ [should] be granted unless the state affords petitioner an opportunity to present his appeal to the appropriate New York State Court for consideration of the issues concerning the jury instructions and the Rosario claim as if they were properly and timely presented, or, in the alternative, provides petitioner a new trial." (Report at 26-27).

For the reasons set forth below, the Magistrate's Report is adopted in part and rejected in part. Specifically, the Court accepts so much of the Report as recommends denial of Petitioner's two due process claims (with respect to the trial court's jury instructions and failure to provide Rosario material). The Court respectfully rejects so much of the Report as finds that there was ineffective assistance of appellate counsel. The writ is, therefore, denied in its entirety.

Background

Following a jury trial in New York Supreme Court, Westchester County, on June 4, 1975 Petitioner was convicted of murder in the second degree, assault in the second degree, and possession of a weapon as a misdemeanor. The jury convicted Petitioner of stabbing to death Mrs. Elfredie Bernhardt ("Mrs. Bernhardt") at her home on January 17, 1974, and also of stabbing her five year old son, a cerebral spastic, in his legs.*fn5 Following the crimes, Petitioner turned himself into the police.*fn6 At police headquarters on January 29, 1974, after being informed of his rights, Petitioner confessed to killing Mrs. Bernhardt.*fn7

Petitioner told the police that he had had two drinks of scotch and water before driving to the Bernhardt residence prior to the murder. He denied that he had used drugs prior to the crime.*fn8 At trial, Petitioner again admitted that he had stabbed Mrs. Bernhardt, but claimed (for the first time) that he had taken two LSD tablets before driving to the Bernhardt residence. Indeed, a central issue at trial was whether Petitioner had taken LSD on the day of the murder and, if so, what effect (legally and psychologically) the LSD had on Petitioner's mental state.*fn9 On July 7, 1975, Petitioner was sentenced to a term of imprisonment of twenty-five years to life, with concurrent lesser terms imposed for the assault and weapons charges.

In August 1976, Petitioner filed the first of several state appeals. Petitioner raised five issues on direct appeal. First, he argued that the jury's finding that his sanity had been proven beyond a reasonable doubt was not supported by the evidence. Second, he challenged the trial court's refusal to instruct the jury that LSD "intoxication" was a (complete) defense if it rises to the level of insanity. Third, he claimed that a number of rulings made by the trial court denied him a fair trial, including, in particular, various Rosario rulings. Fourth, he challenged the trial court's jury instruction that he had the burden of proving the affirmative defense of extreme emotional distress. Fifth, he claimed that his sentence was excessive.

Petitioner's conviction was (unanimously) affirmed, without opinion, by the Appellate Division, Second Department on December 6, 1976. See People v. Giraldi, 55 A.D.2d 858, 390 N.Y.S.2d 768 (N.Y.App. Div. 1976). Leave to appeal was denied by the New York State Court of Appeals on January 24, 1977. See People v. Giraldi, 41 N.Y.2d 866, 393 N.Y.S.2d 1033, 362 N.E.2d 631 (1977).

In 1991, almost fifteen years after his conviction was affirmed by the Appellate Division, Petitioner moved in the Appellate Division for a writ of error coram nobis asserting, as he does here, ineffectiveness of appellate counsel (based on the same alleged omissions of counsel that are raised in the instant petition).*fn10 The Appellate Division denied the coram nobis motion, ruling that Petitioner "had not established that retained counsel rendered ineffective assistance in connection with his 1976 appeal." (Decision & Order on Motion dated November 21, 1991) (emphasis added).

In 1993, Petitioner, proceeding pro se, moved in the Appellate Division to recall and vacate the 1976 decision affirming his conviction. The grounds Petitioner asserted before the Appellate Division in 1993 were the same as those asserted here (i.e., the trial court's allegedly erroneous jury instructions concerning his insanity defense and the District Attorney's refusal to produce certain alleged Rosario material). Petitioner did not assert a claim for ineffective assistance of counsel. On August 4, 1993, the Appellate Division denied Petitioner's motion. (Decision & Order on Motion dated August 4, 1993).

The instant petition followed two years later.*fn11

By Order dated April 20, 2000, the Court directed that a hearing be held for the purpose of receiving "evidence on the following issues, among others: (i) Appellate Counsel's reasoning for not raising on appeal the trial court's allegedly erroneous jury instruction on insanity, and (ii) Appellate Counsel's reasoning for not raising on appeal the trial court's failure to direct the District Attorney to turn over to the defense certain alleged Rosario material, i.e., summaries of the statements of certain witnesses." (Order dated April 20, 2000 at 1-2). See, e.g., McKee v. United States, 167 F.3d 103, 108-09 (2d Cir. 1999) (remanding to District Court because there was "no indication that [petitioner's] first appellate counsel was afforded an opportunity to be heard and to present evidence regarding his reason for not challenging the district court's reasonable-doubt instructions on the direct appeal"). The hearing was conducted on May 16, 2000.*fn12 The parties filed post-hearing briefs which were received in Chambers on June 28, 2000.

Standard of Review

If no written objections are filed, a District Judge need only satisfy himself that there is no clear error on the face of the record. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Heisler v. Kralik, 981 F. Supp. 830, 840 (S.D.N.Y. 1997), aff'd, 164 F.3d 618, 1998 WL 636985 (2d Cir. 1998). When timely objections are made to a Magistrate's report, the District Judge must make a de novo determination, but is not required to conduct a de novo hearing. See, e.g., East River Sav. Bank v. Secretary of Housing and Urban Development, 702 F. Supp. 448, 453 (S.D.N.Y. 1988). Once objections are received, a District Judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate. See DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994), aff'd; 77 F.3d 578 (2d Cir. 1996); Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988); East River Sav. Bank, 702 F. Supp. at 453.

Neither party has objected to Magistrate Bernikow's recommendations of denial of Petitioner's (two) due process challenges (i.e., relating to the trial court's jury instructions concerning the insanity defense and the District Attorney's refusal to disclose certain alleged Rosario material). Respondent, however, has objected to Magistrate Bernikow's conclusion, with respect to Petitioner's claim of ineffective assistance of appellate counsel, that Petitioner should be entitled to present an appeal to an appropriate New York State court or be granted a new trial.

The Court has undertaken a de novo review of the entire Report and of the record upon which it is based. See Simpkins v. Bellevue Hospital, 832 F. Supp. 69, 70 (S.D.N.Y. 1993) ("[a]lthough not required under Fed.R.Civ.P. 72, the court conducted a de novo review of the Report"). Having undertaken a de novo review, the Court adopts the Report in so far as it recommends denial of Petitioner's due process challenges to the trial court's jury instructions and the failure to provide alleged Rosario material.*fn13 This recommendation is consistent with the record and applicable case law. However, for the reasons discussed below, the Court respectfully disagrees with Magistrate Bernikow's analysis and conclusions concerning Petitioner's claim for ineffective assistance of appellate counsel. The Court finds that Magistrate Bernikow made several substantial errors of fact and law in assessing Petitioner's claim for ineffective assistance of appellate counsel.

Analysis

The Strickland Test

In order to prevail on a claim for ineffective assistance to counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a habeas petitioner must satisfy a two-part test. First, petitioner must show that his attorney's performance "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. Second, petitioner must demonstrate that there is a reasonable probability that, but for counsel's error, "the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.*fn14 While the Strickland test was formulated in the context of evaluating a claim for ineffective assistance of trial counsel, the same test is used to assess claims pertaining to appellate counsel.

In his Report, Magistrate Bernikow failed to consider that "the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation . . . the purpose is simply to ensure that criminal defendants receive a fair trial." Id. at 689, 104 S.Ct. 2052. A review of the record here demonstrates that Petitioner did receive a fair trial. Indeed, he received a vigorous and (at least) objectively reasonable defense, both at trial and on appeal, from competent counsel. Though Petitioner was unsuccessful at trial and on appeal, this it seems clear was due to the overwhelming evidence against Petitioner (including his detailed confession), rather than the alleged ineffectiveness of (appellate) counsel. After a thorough review of the record, the Court concludes there can be little doubt that the "adversarial testing process" worked in this case. Id. at 690, 104 S.Ct. 2052.

Judicial Scrutiny of Counsel's Performance Is Highly Deferential

Magistrate Bernikow's review of appellate counsel's performance was not "highly deferential," as it should have been. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The Magistrate conducted no hearing affording appellate counsel the opportunity to be heard. See McKee, 167 F.3d at 108-09. The Report provides no indication that Magistrate Bernikow recognized "that counsel is strongly presumed to have rendered adequate assistance . . ." Strickland, 466 U.S. at 690, 104 S.Ct. 2052. In Strickland, the Supreme Court explained that:

It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . .

Id. at 689, 104 S.Ct. 2052 (emphasis added). The Supreme Court went on to warn that:

The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense.

Id. at 690, 104 S.Ct. 2052.

Here, Petitioner was convicted at trial based upon overwhelming evidence of guilt, including his own detailed confession. (Trial Tr. at 309-51).*fn15 Adoption of Magistrate Bernikow's recommendation would render the Supreme Court's "highly deferential" standard virtually meaningless.

Undue Delay

Magistrate Bernikow also failed adequately (if at all) to take into consideration the presumption of prejudice stemming from the substantial delay in filing the instant petition, i.e., nineteen (19) years after the Appellate Division's affirmance of Petitioner's conviction in 1976.

The Rules Governing Section 2254 Cases in the United States District Courts provide that:

Delayed Petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.

Rule 9(a) of the Rules Governing Section 2254 Cases in the United States District Court. According to the Advisory Committee Notes to Rule 9:

This rule is intended to minimize abuse of the writ of habeas corpus by limiting the right to assert stale claims. . . Subdivision (a) provides that a petition attacking the judgment of a state court may be dismissed on the grounds of delay if the petitioner knew or should have known of the existence of the grounds he is presently asserting in the petition and the delay has resulted in the state being prejudiced in its ability to respond to the petition. If the delay is more than five years after the judgment of conviction, prejudice is presumed, although this presumption is rebuttable by the petitioner.

. . . The grounds most often troublesome to the courts are ineffective assistance of counsel . . .

The instant habeas petition, as noted, was filed in 1995, some nineteen years after Petitioner's conviction was affirmed by the Appellate Division. While this delay of almost two decades does not bar the instant habeas petition, it (should) be taken into account in ruling on Petitioner's application for collateral relief. See Benn v. Stinson, 917 F. Supp. 202, 208 n. 7 (S.D.N.Y. 1995).*fn16

In Honeycutt v. Ward, 612 F.2d 36 (2d Cir. 1979), cert. denied, 446 U.S. 985, 100 S.Ct. 2969, 64 L.Ed.2d 843 (1980), the Court of Appeals for the Second Circuit reversed the judgment of the District Court which had granted a writ of habeas corpus. The Honeycutt court based its ruling, in large part, upon petitioner's undue delay in filing his habeas petition under Rule 9. The procedural history in Honeycutt was similar to the instant case in that:

After bringing several . . . petitions in the New York courts, Honeycutt challenged the use of the Oklahoma conviction as a predicate felony in a Coram nobis application, which was denied by the Supreme Court, New York County, on March 3, 1976. On August 5, 1976, leave to appeal was denied by the Appellate Division, First Department, as was leave to appeal from the Appellate Division's ruling on September 23, 1976, by the New York Court of Appeals. Subsequently, [on May 16, 1978] Honeycutt commenced the instant habeas corpus proceeding, claiming that the most ancient of his convictions the 1949 Oklahoma conviction was obtained in violation of his Sixth Amendment right to counsel and that, therefore, he should not have been sentenced as a fourth felony offender in 1954.

Id. at 38-39.

Though the grounds for relief in Honeycutt were somewhat different than those in the instant case, the issue of delay in seeking habeas relief is similar. "While it is important that one convicted of crime in violation of constitutional principles should be accorded relief, it is also important that reasonable diligence be required in order that litigation may one day be at an end." Id. at 42. In his concurring opinion in Honeycutt, Judge Friendly stated that "[i]t has long `been recognized that the lapse of time affects the quantum of required proof as well as the good faith and credibility of the moving party.'" Id. at 43 (Friendly, J., concurring) (citation omitted). Judge Friendly also specifically noted "[b]ecause of the failure of the district judge to give appropriate weight to this principle . . . the court's conclusion that Honeycutt did not have the assistance of counsel cannot stand." Id. In the instant case, Magistrate Bernikow failed to give appropriate weight to this principle. In fact, he apparently gave it no weight at all.

Petitioner Was Convicted Based On Overwhelming Evidence of Guilt.

At the time Petitioner first raised the issue of ineffective assistance of appellate counsel (i.e., in his 1991 motion for a writ of error coram nobis), the District Attorney's memorandum of law in opposition countered with a detailed showing that Petitioner was convicted of murder and assault based upon overwhelming evidence.*fn17 Among other evidence, prior to his arrest, Petitioner confessed to both his girlfriend, Gail Paradiso (Trial Tr. at 167)*fn18, and to his childhood friend, James Capozi, that he had killed Mrs. Bernhardt. (Trial Tr. at 224).*fn19 Upon his arrest, and after being apprised of his Miranda rights, Petitioner made a lengthy confession to the police, admitting that he stabbed Mrs. Bernhardt. (Trial Tr. at 309-51).*fn20 After making the confession, Petitioner telephoned his mother in Florida and told her that he had killed Mrs. Bernhardt. (Trial Tr. 412-14). Many of the details of Petitioner's confession were corroborated by the testimony witnesses as well as the physical evidence obtained at the crime scene.*fn21

At the hearing conducted by this Court on May 16, 2000, Mr. Hoffinger, who, as noted, served as Giraldi's principal trial counsel in 1975, stated that:

The evidence against Mr. Giraldi, in terms of what occurred, was quite bad. By that I mean, what we were confronted with was not only the stabbing, and I believe it was multiple stabbing, of a woman who was in her late 30's, I believe, Elfredie Bernhardt, . . . in her driveway, where she had apparently no underclothes, her underclothes were found in the house, but complicating that event — which was bad enough, because here we had a woman who was presumably defending her home, it looked like, and maybe defending her own honor — but complicating the matter was the slashing of the legs of a brain-damaged child, a 5-year-old child, a boy.

(Hearing Tr. at 10).

It appears to this Court that the evidence of guilt was overwhelming and that trial counsel had a very weak case. Indeed, the evidence suggested that, as a matter of fact, Petitioner had not taken LSD (shortly) before committing the crime. In his confession to the Irvington police, when asked whether he used "marijuana or drugs," Petitioner answered "A long time ago, but not anymore." (Trial Tr. at 315).*fn22 Similarly, in his confessions to his girlfriend Gail Paradiso, to his friend James Capozi and to his mother, Petitioner never mentioned that he had taken or was under the influence of LSD when he killed Mrs. Bernhardt. Gail Paradiso testified that when she saw Petitioner at 6:15 p.m. — only 2 1/2 hours after he allegedly took two tablets of LSD and approximately one hour and fifteen minutes after he killed Mrs. Bernhardt — his actions appeared to be quite rational (Trial Tr. at 195). At about 6:30 p.m. — the same evening of the murder — Ms. Paradiso and Petitioner had dinner with Ms. Paradiso's parents. (Trial Tr. at 153). Soon thereafter, at approximately 7 p.m., she and Petitioner sat down to watch television and do word puzzles, which required the unscrambling of letters to form words based on certain clues. (Trial Tr. at 154). The District Attorney's psychiatric expert, Dr. A. Leonard Abrarns, testified that "[i]t's my opinion that [Petitioner] was not on [LSD] at the time of the incident." (Trial Tr. at 810).*fn23 In sum, the evidence suggests that Petitioner's (belated) claim that he took LSD prior to killing Mrs. Bernhardt was suspect and that one of the central issues at trial was Petitioner's own credibility.

Magistrate Bernikow's Report does not acknowledge that the overwhelming evidence of Petitioner's guilt militates against granting habeas relief. See Billy-Eko v. United States, 8 F.3d 111, 118 (2d Cir. 1993) ("[m]oreover, the evidence against Billy-Eko was overwhelming, mitigating any error in the admission of the 1968 undocumented employment"), superseded by statute on other grounds as noted in, Triestman v. U.S., 124 F.3d 361, 369 n. 8 (2d Cir. 1997); Williams v. Walker, 1993 WL 22128 at *6 (S.D.N.Y. Jan.26, 1993) ("we do not believe that defendant demonstrated the requisite prejudice under Strickland, for it is inconceivable to this Court — considering the strength of the government's case and the complete absence of corroborating evidence that petitioner was intoxicated — that petitioner would have been acquitted had he offered a defense of intoxication"). See generally Calderon v. Thompson, 523 U.S. 538, 554-55, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) ("In light of `the profound societal costs that attend the exercise of habeas jurisdiction,' we have found it necessary to impose significant limits on the discretion of federal courts to grant habeas relief. . . . These limits reflect our enduring respect for `the State's interest in the finality of convictions that have survived direct review within the state court system.'") (citations omitted).

Appellate Counsel Made Several Nonfrivolous Arguments on Appeal

Magistrate Bernikow also failed to acknowledge that Messrs. Hoffinger and Goldschlag filed a thorough and professional direct appeal on Giraldi's behalf in 1976.*fn24 It is well settled that "[e]very non-frivolous claim need not be urged if `counsel, as a matter of professional judgment, decides not to present those points.'" Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990) (quoting Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). See also Robbins, 120 S.Ct. at 765 (appellate counsel "need not (and should not) raise every nonfrivolous claim . . ."). Although the Supreme Court has cautioned that judges should not impose on "counsel a duty to raise every `colorable' claim . . .," Jones, 463 U.S. at 754, 103 S.Ct. 3308, Magistrate Bernikow did not follow this admonition.

Indeed, appellate counsel raised on appeal the core defense issues from Petitioner's trial — including, among others, the issues of LSD ingestion, intoxication, and insanity. They argued that the jury's finding that Petitioner's sanity had been proven beyond a reasonable doubt was not supported by the evidence. They challenged the trial court's refusal to instruct the jury that intoxication is a defense if it rises to the level of insanity.*fn25 They claimed that a number of erroneous rulings — including some which concerned Rosario issues — were made throughout the trial and denied Petitioner a fair trial. They challenged the trial court's jury instruction that Petitioner had the burden of proving the affirmative defense of extreme emotional distress. And, they claimed that Petitioner's sentence was excessive.*fn26

In his Report, Magistrate Bernikow states (erroneously in this Court's view) that "the claims raised by appellate counsel were weak and thus reduced his effectiveness." (Report at 10). This sweeping statement is flatly contradicted by the record. Moreover, the Report itself only specifically, addresses two of the five arguments made by appellate counsel. (Report at 10-12). It fails to address (much less challenge) the merits of appellate counsels' three other arguments. Thus, Magistrate Bernikow's failure to confront the merit of the first, second and fifth arguments raised by appellate counsel undermines his conclusions. The first and second arguments contained in appellate counsels' direct appeal, which focused on Petitioner's intoxication/insanity defense, go to the very heart of defense counsels' trial strategy.

"One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions, like the currency, depreciate through over-use. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one. . . . [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one."

Jones, 463 U.S. at 752, 103 S.Ct. 3308 (quoting Jackson, Advocacy Before the Supreme Court, 25 Temple L.Q. 115, 119 (1951)) (emphasis added).*fn27

Even if one were to assume that Magistrate Bernikow was correct that appellate counsels' third and fourth arguments were "weak," the fact that appellate counsel raised (at least) three strong (additional) arguments on appeal would amply demonstrate that their performance was well within the (wide) range expected of counsel. The Court, however, vigorously disagrees with Magistrate Bernikow's assessment that appellate counsels' third and fourth arguments were weak. These are addressed in reverse order.

With respect to Magistrate Bernikow's criticism of appellate counsels' fourth argument (i.e., that the trial court's jury instruction on the burden of proving the affirmative defense of extreme emotional distress was erroneous), the Report states:

[Appellate counsel] argued, for example, citing Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), that it was unconstitutional to require petitioner to assume the burden of proving that he acted under the influence of extreme emotional disturbance. . . . The New York Court of Appeals, however, rejected that very argument in Patterson, 383 N.Y.S.2d at 581, 347 N.E.2d 898, which distinguished Mullaney, and counsel knew about that because he cited Patterson as a contra holding. . . . Thus, the argument had little chance of success.

(Report at 10). However, Magistrate Bernikow entirely failed to consider that, at the time appellate counsel submitted their brief to the Appellate Division, the New York Court of Appeals' (4 to 3) decision in Patterson was pending review by the United States Supreme Court. That the Supreme Court viewed the issue presented by appellate counsel as sufficiently meritorious to grant certiorari (and to later write extensively on the matter) suggests, if not demonstrates, that appellate counsel had good reason to raise it on direct appeal, Magistrate Bernikow's views notwithstanding. Indeed, Petitioner's counsel in the instant matter has essentially conceded this point. At oral argument before Judge Keenan on January 27, 1997, the following exchange occurred:

[JUDGE KEENAN]: Mr. Rubin [Petitioner's counsel], what about the fact that really [appellate counsel] is damned if he does and damned if he doesn't? If he doesn't raise the affirmative defense issue and the constitutionality of it relating manslaughter in the first degree and extreme emotional disturbance at a point in time when Patterson is not the law yet for sure, and at a point in time when the New York Court of Appeals decides it 4/3, may he be criticized for not having raised that?

MR. RUBIN: I would agree with that. I would think that Patterson at the time was possibly a viable issue.

(Keenan Tr. at 18) (emphasis added). Appellate counsels' argument, contrary to Magistrate Bernikow's ("weak") characterization, was a good one.

In criticizing appellate counsels' third argument (i.e., concerning certain Rosario claims), Magistrate Bernikow states:

[appellate counsel] argued that the trial order [sic] erred by ruling that the prosecution could ask its witness whether they had given a statement to the authorities and, if so, to turn it over to the defense in the presence of the jury. The appellate brief complained about this procedure because a decision not to cross-examine a witness about a prior statement would lead the jury to believe that the statement was consistent with the witness's trial testimony.

Counsel cited no authority for this argument. Yes, he cited Crawford v. Nilan, 289 N.Y. 444, 46 N.E.2d 512 (1943), but only for the familiar principle that the prior consistent statement of a witness cannot bolster his testimony. . . . Crawford, a civil case, had nothing to do with Rosario. Also, the brief cited no instance where the challenged procedure occurred and, hence, failed to show, what, if any, prejudice resulted.

(Report at 10-11) (emphasis added). Again, this Court strongly disagrees with Magistrate Bernikow. The trial judge's handling of this matter could well have been prejudicial to Petitioner and was properly raised on appeal. Again, at oral argument before Judge Keenan in on January 27, 1997, Petitioner's counsel acknowledged the merit of appellate counsels' argument:

[JUDGE KEENAN]: The evidentiary ruling by the judge was the one — one of the wildest rulings I ever read about.

MR. RUBIN: I agree with the court. . . . The method in doing that gave the jury the clear impression, or would give the jury the clear impression there was nothing inconsistent in the statements if it wasn't used to cross-examine . . . .

(Keenan Tr. at 18-19) (emphasis added). Magistrate Bernikow was simply wrong. There can be no serious dispute that this was a strong issue to raise on appeal.

Claims Not Pursued By Appellate Counsel

It is clear to the Court that appellate counsels' representation of Petitioner was well within the wide range of competence required under the Sixth Amendment. See Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052. Nevertheless, the Court will briefly address — because Magistrate Bernikow did — appellate counsels' failure to raise certain (other) issues on appeal, namely, the trial court's jury instructions on insanity and the District Attorney's alleged failure to turn over to Petitioner certain alleged Rosario material.

Trial Court's Insanity Jury Instruction

As reflected in Magistrate Bernikow's Report, Petitioner claims that the trial court's instruction on insanity was incorrect. New York Penal Law § 30.05, which was in effect at the time of the trial, provided that:

1. A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity to know or appreciate either:

(a) The nature and consequences of such conduct; or

(b) That such conduct was wrong.

2. In any prosecution for an offense, lack of criminal responsibility by reason of mental disease or defect, as defined in subdivision one of this section, is a defense.

N.Y. Penal Law § 30.05 (McKinney 1975).
*fn28 Under § 30.05, the State mast prove that "the defendant was in fact criminally responsible in that he possessed

(1) the substantial mental capacity to know, and

(2) the substantial mental capacity to appreciate, both

(3) the nature and consequences of his conduct, and

(4) that such conduct was wrong." 1 Criminal Jury Instructions of the State of New York (1983) at 808 (emphasis in original).

In instructing the jury, the trial judge (in 1975) initially read the provisions of § 30.05 to the jury accurately. (Trial Tr. at 924). It appears, however, that at subsequent instances, in attempting to adapt the statute for purposes of the jury instructions, the trial judge failed properly to change the disjunctive ("or") to the conjunctive ("and"), connecting mental capacity to know "and" mental capacity to appreciate. By way of example, the trial judge instructed the jury as follows:

The first possible verdict is guilty of murder. If you find beyond a reasonable doubt that the Defendant killed Elfredie Bernhardt and intended to kill Elfredie Bernhardt and did so while possessing substantial capacity to know or appreciate the nature and consequences of his conduct and such conduct was wrong, your verdict should be guilty of murder.

(Trial Tr. at 942-43) (emphasis added). Petitioner's trial counsel, Messrs. Hoffinger and Goldschlag, did not object to this instruction. Mr. Hoffinger affirmatively waived any claim with respect to the instruction by stating that "I have no quarrel with the statement what legal insanity is."*fn29 (Trial Tr. at 955). Although, failure to timely object to a jury instruction generally fails to preserve it for appellate review, see, e.g., N.Y.Crim. Proc. Law. § 470.05(2), Petitioner, as noted, does not claim that trial counsel was ineffective.

Even though the jury instruction in question was not challenged and was, thus, unpreserved for appellate review, Magistrate Bernikow concluded that the erroneous jury charge should have been pursued on direct appeal because the Appellate Division might have exercised its discretion and reviewed the unpreserved claim in the interests of justice. (Report 8-10, 12-17).*fn30 In reaching this conclusion, Magistrate Bernikow relied, in large part, on People v. Buthy, 38 A.D.2d 10, 326 N.Y.S.2d 512 (1971), where the trial court made the same error at issue here, i.e., charging "know or appreciate" instead of "know and appreciate." Over the dissent of Judge Moule, the Court in Buthy (Appellate Division, Fourth Department), "reluctantly" reversed the defendant's conviction. Id. at 514.*fn31

But there is a substantial difference between Buthy and the instant case. In Buthy, defense counsel "excepted to [the erroneous charge] and requested that the court charge on that subject in accordance with defendant's previously submitted written requests to charge. The court refused such request, and defendant excepted thereto." Id. at 516.*fn32 Here, defense counsel did not object to the charge at issue. (Trial Tr. at 955)*fn33

Appellate counsel here did raise a number of strong and substantial arguments on appeal (see, above) going to the core of Petitioner's defense. Failure to raise an unpreserved claim on appeal did not result in ineffective assistance of appellate counsel and the Court respectfully rejects Magistrate Bernikow's recommendation in this regard.

Moreover, the Court strongly disagrees with Magistrate Bernikow's conjecture that "a reasonable probability existed that had the issue been raised, the Appellate Division, Second Department, would have adopted the holding in Buthy and reversed petitioner's conviction." (Report at 16). In fact, the Appellate Division, Second Department examined this very issue in connection with Petitioner's coram nobis appeal in 1991 and rejected it. In its Decision and Order on Motion dated November 21, 1991, the Appellate Division, Second Department ruled that Giraldi "has not established that retained counsel rendered ineffective assistance in connection with his 1976 appeal." (Decision and Order on Motion dated November 21, 1991) (emphasis added). See also People v. Cornish, 43 A.D.2d 103, 349 N.Y.S.2d 694 (1973) (refusing to reverse defendant's conviction in the "interests of justice" where defense counsel did not object at trial and defendant's "guilt is clear").

Rosario Claims

Petitioner's contention that his appellate counsel was ineffective because they (allegedly) did not raise certain Rosario issues on appeal, flies in the face of the rule that "[f]ailure to turn over Rosario material is not a basis for habeas relief as the Rosario rule is purely one of state law." Stephens v. Costello, 55 F. Supp.2d 163, 167 (W.D.N.Y. 1999) (quoting Green v. Artuz, 990 F. Supp. 267, 274 (S.D.N.Y. 1998)).*fn34 Petitioner here attempts to circumvent the consequences of this clear rule by pursuing his Rosario claim in the guise of a claim of ineffective assistance of appellate counsel. While Petitioner's Rosario claim may fail for this reason alone, it is also fatally deficient for other reasons as well. While acknowledging that appellate counsel did raise several Rosario issues on appeal, Magistrate Bernikow narrowly parses (and gives credence to) Petitioner's instant Rosario claim stating that "Petitioner now complains about the trial court's failure to direct the prosecutor to turn over summaries of the statements of witnesses." (Report at 17).

The Court concludes that this (and all other) Rosario claims were adequately raised by appellate counsel. In their brief on direct appeal, dated August, 1976, appellate counsel argued that:

The court . . . improperly den[ied] defense counsel complete access to prior statements of prosecution witnesses. Prior written statements of law enforcement officers who testified were not turned over to the defense in their entirety. The prosecutor contended that he was obliged to turn over only those portions which he concluded were relevant to the witness' direct testimony, even though he conceded that the entire statements related to the Bernhardt investigation. The court proceeded to review the statements in camera and refused to order them turned over in their entirety (T132-38). This was clearly erroneous. . . . [appellate counsel then cited a number of cases including People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961)].

(Petitioner Brief on Direct Appeal at 30-31).

In his Report, Magistrate Bernikow stated that "counsel's failure to argue that the trial court's Rosario ruling constituted reversible error was objectively unreasonable and constitutionally deficient." (Report at 19-20). This Court disagrees.

The Court finds that appellate counsel made a clear and comprehensive Rosario argument which adequately presented the issue on direct appeal to the Appellate Division. The Court agrees with Judge Keenan's observation that the Appellate Division was squarely presented with Petitioner's Rosario claims: "Rosario was all over the case. Whether it was argued exactly the same way that it was argued in the coram nobis, the appellate tribunal's attention was directed to the Rosario issue." (Keenan Tr. at 23). Even assuming, arguendo, that appellate counsel did not raise certain (precise) Rosario claims on appeal, an attorney's decision to pursue one Rosario claim on appeal as opposed to another Rosario claim appears to be precisely the type of strategic decision which the Supreme Court cautioned should not be second guessed. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052 ("strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable").

Most importantly, based on the hearing held before this Court on May 16, 2000, it appears that the Rosario claims raised by Petitioner in the instant case were, in fact, rendered moot at the trial in 1975. Mr. Hoffinger testified that "Something happened during the trial where I know that the Rosario issue that I was raising with Judge Beisheim was mooted, there is no question about that, because I recall, not specifically but generally, that Bill Fredreck, the prosecutor, showed me some material, and it became moot." (Hearing Tr. at 24). Mr. Goldschlag testified that "I have a recollection of walks to and from Judge Beisheim's chambers to the courtroom, in which Mr. Fredreck was present. I believe that there were some discussions about Rosario material in that. I have some recollection that something occurred which mooted out or made academic that issue." (Hearing Tr. at 50). Indeed, something did occur.

Mr. Fredreck, although unable to attend the hearing on May 16, 2000, advised in a Stipulation dated June 19, 2000, that, among other things:

If called to testify before this Court, said William Fredreck would testify to his best recollection accurate to a "high degree of confidence" to the following effect in regard to Rosario materials that consisted of police reports that set forth the statements of a civilian witness in the form of a report made by a police officer (i.e., "Consolazio" material), as opposed to statements made in the handwriting or under the signature of that witness:

a. In spite of an early ruling by the trial court that the People were not required to produce such Consolazio material regarding witnesses Audrey Rosen and David Zlowe, which had been requested by defense attorney Jack Hoffinger, Esq., William Fredreck did produce that that [sic] Consolazio material regarding witnesses Rosen and Zlowe later in his direct case; and

b. William Fredreck so produced the aforesaid material to the defense regardless of whether the particular police officer who made such written report was called to the stand; and

c. Such material would not have been marked for identification or indicated in the record, as, after witness John Monks, William Fredreck terminated his prior practice of so marking and indicating Rosario materials produced to the defense.

(Stipulation dated June 19, 2000) (emphasis added).

Magistrate Bernikow did not offer appellate counsel the opportunity to be heard before (unfairly) concluding — years after the fact — that they had been ineffective in a Constitutional sense. His conclusions are: internally inconsistent; contrary to established precedent; and (at least) in the case of his Rosario recommendation, based upon demonstrably false factual determinations.

Conclusion

For the foregoing reasons, the Report is adopted in part and rejected in part. The writ of habeas corpus is denied.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.