Although petitioner now argues that had he known that depraved
indifference to human life was an element of the crime, he would
not have pled guilty, the record does not support this
contention. The indictment charged that petitioner, "under
circumstances evincing a depraved indifference to human life, did
recklessly engage in conduct which created a grave risk of death
to another person, and thereby caused the death of Sean Healy, by
firing multiple shots in the direction of a number of people from
an automobile." See Ex. 7 to Resp. Aff. This provided
petitioner notice that depraved indifference was the required
level of intent for the crime. Further, during his plea
allocution, petitioner acknowledged that he discussed pleading
guilty to second-degree murder with his attorney before entering
his plea. Moreover, petitioner made the factual admission during
the allocution that he had driven to a grocery store and fired
eight or nine shots into a doorway to a grocery store, thereby
admitting facts which satisfied the requisite mental state for
depraved indifference murder. Therefore, even if counsel did fail
to inform petitioner that depraved indifference murder required
reckless disregard of an imminently dangerous risk, petitioner
suffered no prejudice as a result of counsel's alleged omission.
Cf. Rosenfeld v. United States, 972 F. Supp. 137, 144 (E.D.N Y
1997) (even if counsel failed to inform petitioner of the elements
of the crimes, the factual bases for petitioner's guilty pleas
ensured that he did not suffer prejudice).
Even assuming, arguendo, that petitioner could establish that
counsel had failed to inform him of the elements of murder and
manslaughter, petitioner has failed to show any prejudice
resulting from this alleged omission. Petitioner pled guilty to
second degree murder, not to manslaughter, and he admitted a
factual basis to sustain a conviction for second degree murder.
Accordingly, petitioner has not demonstrated how counsel's
purported failure to inform petitioner of the elements of another
crime prejudiced him. As the trial court held in ruling on
petitioner's § 440.10 motion, "defendant's argument that the
elements of intentional murder in the second degree were never
explained to him by counsel is irrelevant in view of the fact
that petitioner pleaded guilty to depraved indifference murder in
the second degree." Ex. 4 to Resp. Aff.
Petitioner's claim that counsel was ineffective for failing to
inform petitioner of possible affirmative defenses is also
meritless. "The likelihood that an affirmative defense will be
successful at trial and an assessment of the probable increase or
reduction in sentence relative to the plea if the defendant
proceeds to trial are clearly relevant to the determination of
whether an attorney acted competently in recommending a plea."
Panuccio, 927 F.2d at 109. The court's assessment of whether a
petitioner would have gone to trial but for counsel's errors
"will depend largely on whether the affirmative defense likely
would have succeeded at trial." Hill v. Lockhart, 474 U.S. 52,
59, 106 S.Ct. 366, 371, 88 L.Ed.2d 203 (1985); see also
Panuccio, 927 F.2d at 109; Herring v. Artuz, 28 F. Supp.2d 852,
855 (S.D.N.Y. 1998). The Second Circuit has held that "this prong
of the inquiry is not satisfied merely by [petitioner's]
testimony that he would have gone to trial had he known of the
defense, . . . since a defendant's testimony after the fact
suffers from obvious credibility problems." Panuccio, 927 F.2d
at 109 (internal citations omitted); see also Slevin v. United
States, 71 F. Supp.2d 348, 363 (S.D.N.Y. 1999).
Petitioner contends that he may have had an affirmative defense
based on his present contentions that he did not know anyone was
in the store into which he discharged his gun, that he never
intended to kill anyone, and that he fired his pistol in the
course of a heated argument. See Pet. Mem., at 17. As discussed
above, petitioner's present contentions are inconsistent with the
sworn statements he made at his plea allocution and are of little
relevance to any constitutional habeas claim. In any event, lack
of intent to kill is not a
defense to depraved indifference murder. Moreover, petitioner has
failed to articulate how the discharge of his gun eight or nine
times, even in the course of a heated argument, would give rise
to an affirmative defense. See People v. Roe, 74 N.Y.2d 20, 24,
544 N.Y.S.2d 297, 542 N.E.2d 610 (1989) ("depraved indifference
murder . . . is a nonintentional homicide . . . evidence of the
actor's subjective mental state is not pertinent to a
determination of . . . whether the objective circumstances
bearing on the nature of a defendant's reckless condition are
such that the condition creates a very substantial risk of
death"); People v. Fink, 251 A.D.2d 751, 674 N.Y.S.2d 793, 794
(3d Dept. 1998) (focus in depraved indifference murder cases is on
an objective assessment of the risk presented by defendant's
reckless conduct, not on his subjective intent); People v.
Rios, 230 A.D.2d 87, 658 N.Y.S.2d 579, 581 (1st Dept. 1997) (the
"requirement of depraved indifference is not a mens rea element
but is included in the statute to objectively define the
circumstances which must exist to elevate a homicide from
manslaughter to murder"); People v. Call, 187 A.D.2d 937,
591 N.Y.S.2d 114, 114 (4th Dept. 1992) (intent not an issue where
defendant was charged with depraved indifference murder). Thus,
counsel could not have been ineffective for failing to pursue
this purported affirmative defenses. Cf. Herring, 28 F. Supp.2d
at 855 (counsel not ineffective for failing to raise extreme
emotional disturbance defense rather than recommend a guilty
plea, when the defense was unlikely to succeed).
To the extent that petitioner claims that counsel failed to
advise him of the consequences of pleading guilty, petitioner did
not suffer any prejudice because, prior to accepting his plea,
the trial court advised petitioner of his legal rights and
petitioner indicated that he understood the rights he was waiving
by pleading guilty. Cf. Heron v. People of the State of New
York, No. 98 Civ. 7941(SAS), 1999 WL 1125059, at *7 (S.D.N Y
Dec.8, 1999) (denying claim of ineffective assistance of counsel
because "there can be no showing of prejudice [from counsel's
alleged failure to advise petitioner of the consequences of his
guilty plea] as the trial court also advised him of these
rights"); Gurses v. United States, No. 96 Civ. 4729(SS), 1996
WL 487954, at *3 (S.D.N.Y. Aug.27, 1996) (any error by counsel in
failing to explain the plea agreement and its consequences was
cured by the court's plea allocution).
Finally, under the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), this Court may only grant habeas relief
where the state court's determination was either "based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding," or "contrary to, or . .
. an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States."
28 U.S.C. § 2254(d). After hearing the § 440.10 motion, the trial
court concluded that "due to extensive efforts of his attorney
over a lengthy period of time (during which defendant and his
attorney did consult with each other), an advantageous plea . . .
was agreed upon." Ex. 4 to Resp. Aff. The court further found
that "[p]erhaps on reflection, defendant may now regret his
previous decision to plead guilty, however, he cannot maintain .
. . that his plea was . . . in any manner unknowing or
involuntary — or that counsel failed to counsel him or represent
him effectively." Id. The court also found that petitioner had
properly allocuted to the crime of depraved indifference murder.
As the discussion above makes clear, there is no basis for this
Court to conclude that the state court's decision was either an
unreasonable determination or contrary to clearly established
federal law. Accordingly, I respectfully recommend that
petitioner's claims dismissed.
For the reasons set forth above, I respectfully recommend that
the petition for
a writ of habeas corpus be denied, and that the action be
dismissed. As the petition presents no question of substance for
appellate review, I recommend that a certificate of appealability
not be issued. See Reyes v. Keane, 90 F.3d 676, 679 (2d Cir.
1996). I further recommend that the Court certify pursuant to
28 U.S.C. § 1915(a), that any appeal from this order would not be
taken in good faith. See Coppedge v. United States,
369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this report to file written objections. See
also Fed.R.Civ.P. 6(a) and (e). Such objections shall be filed
with the Clerk of the Court, with extra copies delivered to the
chambers of the Honorable Deborah A. Batts, United States
District Judge, and to the chambers of the undersigned, Room
1660. Any requests for an extension of time for filing objections
must be directed to Judge Batts. Failure to file objections will
result in a waiver of those objections for purposes of appeal.
See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054
(2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130
L.Ed.2d 38 (1994); Frank v. Johnson, 968 F.2d 298, 300 (2d
Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d
696 (1992); Small v. Secretary of Health and Human Servs.,
892 F.2d 15, 16 (2d Cir. 1989).
June 21, 2000.