DeEntremont: Tr. 444-51.) Eyewitness Victor Nunez Rosario
testified that he saw Jones, and Scott get out of a blue van and
argue loudly with the Hispanic man; Scott had his hand by his
waist (perhaps on a gun) the Hispanic man took something out of
his pocket and handed it to Jones. (Rosario: Tr. 152-57, 160,
184-88, 209, 222.) Rosario saw Scott draw a silver handgun, fire
it at the Hispanic man, and then Scott and Jones ran to the van.
(Rosario: Tr. 15759, 175-76, 188-89, 209-12, 222-23.)
Three police officers — Sergeant Mulcahy, Sergeant
DeEntremont, and Officer D'Alessandro — testified that at 8:10
that evening, they were patrolling together in plain clothes in
an unmarked car. (D'Alessandro: Tr. 13-15, 36-38, 80; Mulcahy:
Tr. 118-20, 172-73; DeEntremont: Tr. 442-44, 516-517.) The
officers testified that they heard a shot and saw Jones and
Scott running towards a van. (D'Alessandro: Tr. 15-16, 38-40,
80-82, 113; Mulcahy: Tr. 120, 130-31, 173; DeEntremont: Tr.
444-46, 467-68.) Jones, Scott and Primo, who was driving the
van, sped off in the van, hitting parked cars along the way.
(D'Alessandro: Tr. 17-23, 41, 47-53, 56, 86; Mulcahy: Tr. 120,
131-33, 251-52; DeEntremont: Tr. 445-47, 467-68, 478, 497-98,
520-22.) All three officers testified that when they caught up
with the van at Broadway and 157th Street, shots were fired at
them from the van and Scott fled from the van and shot a silver
.380 semiautomatic pistol at Officer D'Alessandro, who returned
fire and fatally shot Scott. (D'Alessandro: Tr. 19-20, 23-25,
29, 36-37, 57-58, 63-68, 87, 92-100; Mulcahy: Tr. 123-24,
134-37, 253-54, 259-64, 308-09; DeEntremont: Tr. 448-51, 482-85,
Jones also fled from the stopped van and threw a loaded
nine-millimeter black gun to the ground. (Mulcahy: Tr. 124,
137-39, 174-79, 238-39, 264-65; DeEntremont: Tr. 453, 542.)
Sergeant Mulcahy identified Jones at trial as the man who left
the van and discarded a black gun. (Mulcahy: Tr. 124, 127,
178-79, 238-39, 328-29.) Sergeant Mulcahy told Sergeant
DeEntremont where the gun was, and Sergeant DeEntremont
testified that he retrieved the black gun from under a car
parked near the van. (DeEntremont: Tr. 453-54, 459-60, 463-64,
542-48, 558*fn1; see also Mulcahy: Tr. 125-28, 238-39,
242-43, 266, 273-79, 329-30.) Jones and Primo were subdued and
placed under arrest. (Mulcahy: Tr. 140-41, 235-36, 240-41,
269-71; Rosario: Tr. 162-64, 173-75, 220-21; Connolly: Tr.
592-95; Legron: 11/6/95 Tr. 8-9.)
Both Primo and Jones rested without calling any witnesses.
(11/6/95 Tr. 36.)
Verdict and Sentence
On November 7, 1995, the jury found Jones guilty of first
degree robbery, second degree criminal possession of a weapon,
and two counts of third degree criminal possession of a weapon.
(11/7/95 Tr. 317-321.)*fn2
On January 19, 1996, Jones was sentenced to concurrent terms
of five to fifteen years imprisonment for the first degree
robbery and second degree weapons convictions, and two to seven
imprisonment for the two third degree weapons convictions.
(1/19/96 Sentencing Tr. 18.) Jones' CPL §§ 330.30 and 440.10
On December 6, 1995, represented by counsel, Jones filed a CPL
§ 330.30 motion claiming the discovery of new evidence: that
Jones' cousin's neighbor would testify that there was no
robbery, and that Jones did not have a gun. (12/95 Jones §
330.30 Motion Papers.) On January 19, 1996, before sentencing
Jones, the trial court denied Jones' CPL § 330.30 motion.
(1/19/96 Decision.) The court denied the motion because it was
not "supported by sworn allegations of fact," and Jones had not
shown that the exercise of due diligence could not have
uncovered the witness's evidence before trial. (Id. at 1-2.)
Finally, the court held that even if the new witness's
information was sworn, it "does not contradict the trial
evidence which was that the co-defendant Scott (now deceased)
used the gun," not that Jones used a gun. (Id. at 2.)
On January 26, 1996, represented by counsel, Jones moved to
vacate his conviction pursuant to CPL § 440.10, based on Jones'
claims that material evidence — Rosario's testimony about a
"robbery" — was know to be false prior to the entry of judgment,
and that the judgment was obtained in violation of Jones' right
to call his newly discovered witness. (1/26/96 Jones CPL §
440.10 motion papers.) On April 30, 1996, the trial court denied
Jones' CPL § 440.10 motion, for the same reasons as it denied
his CPL § 330.30 motion. (4/30/96 Decision.)
Jones' Direct State Court Appeals
Represented by counsel, Jones appealed to the First
Department, contending that his due process rights were violated
because: (1) there was insufficient evidence that Jones forcibly
stole property, had the intent to forcibly steal property, or
used a weapon or knew Scott was going to use a weapon (Jones 1st
Dep't Br. at 14-21); (2) the trial court did not hold an
evidentiary hearing on Jones' post-trial newly discovered
evidence motions (id. at 21-25); and (3) the indictment's
fourth count, charging him with second degree weapon possession,
was duplicative (id. at 25-29).
On April 20, 1999, the First Department affirmed Jones'
The verdict was based on legally sufficient
evidence and was not against the weight of the
evidence. With the exception of [Jones'] challenge
to the evidence supporting the element of intent in
the second-degree weapon possession count,
defendant failed to preserve his current
sufficiency claims, and we decline to review them
in the interest of justice. Were we to review these
claims, we would find that the evidence, viewed as
a whole, provided ample basis for the jury to infer
that a robbery occurred, that defendant
participated therein, and that defendant was in
continuous joint possession of his companion's
[Scott's] weapon with intent to use it unlawfully
against others. Defendant's related claim that the
second-degree weapon possession count was
duplicitous is likewise unpreserved and we likewise
decline to review it in the interest of justice.
Were we to review this claim, we would reject it.
The court properly denied defendant's motions
made pursuant to CPL 330.30(3) and 440.10(1)(g) on
the ground of newly discovered evidence.
People v. Jones, 260 A.D.2d 247, 248, 686 N.Y.S.2d 706, 706
(1st Dep't 1999) (citations omitted).
The New York Court of Appeals denied leave to appeal on June
15, 1999. People v. Jones, 93 N.Y.2d 973 & 979, 695 N.Y.S.2d 58
& 65, 716 N.E.2d 1103 (1999).
Jones' Federal Habeas Corpus Petition
Jones' timely-filed federal habeas corpus petition alleges
that his due process rights were violated because: (1) of
insufficient evidence that he forcibly stole property, had the
intent to forcibly steal property, or used a weapon (Pet. ¶
12(A)); (2) the trial court did not hold an evidentiary hearing
on his post-trial newly discovered evidence motions (Pet. ¶
12(B)); and (3) the indictment's fourth count, charging him with
second degree weapon possession, was duplicative (Pet. ¶ 12(C)).
I. PART OF JONES' FIRST CLAIM, THAT THERE WAS INSUFFICIENT
EVIDENCE THAT HE FORCIBLY STOLE PROPERTY AND USED A HANDGUN,
AND JONES' THIRD CLAIM, THAT THE SECOND-DEGREE WEAPON
POSSESSION COUNT WAS DUPLICATIVE, ARE BARRED FROM HABEAS
REVIEW BECAUSE THE FIRST DEPARTMENT'S DECISION WAS BASED ON AN
ADEQUATE AND INDEPENDENT STATE LAW GROUND
Jones' first habeas claim is that there was insufficient
evidence that he (a) forcibly stole property, (b) had the intent
to forcibly steal property, or (c) used a handgun. (Pet. ¶
12(A).) The First Department held that "[w]ith the exception of
[Jones'] challenge to the evidence supporting the element of
intent in the second-degree weapons possession count,*fn3
[Jones] failed to preserve his current sufficiency claims,"
declined to review them in the interest of justice, and, in any
event held that they lacked merit. People v. Jones, 260 A.D.2d 247,
248, 686 N.Y.S.2d 706, 706 (1st Dep't), appeal denied,
93 N.Y.2d 973 & 979, 695 N.Y.S.2d 58 & 65, 716 N.E.2d 1103 (1999).
Jones' third habeas claim contends that the indictment's
second degree weapon possession count was duplicative. (Pet. ¶
12(C).) The First Department held that this claim was "likewise
unpreserved," declined to review it "in the interest of
justice," and added that "[w]ere we to review this claim, we
would reject it." People v. Jones, 260 A.D.2d at 248, 686
N.Y.S.2d at 706.
The Supreme Court has made clear that the "adequate and
independent state ground doctrine applies on federal habeas,"
such that "an adequate and independent finding of procedural
default will bar federal habeas review of the federal claim,
unless the habeas petitioner can show `cause' for the default
and `prejudice attributable thereto,' or demonstrate that
failure to consider the federal claim will result in a
`fundamental miscarriage of justice.'" Harris v. Reed,
489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989)
(citations omitted); accord, e.g., Coleman v. Thompson,
501 U.S. 722, 735, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991);
Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v.
Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied,
520 U.S. 1108, 117 S.Ct. 1116, 137 L.Ed.2d 317 (1997); Velasquez v.
Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).*fn4
The First Department rejected Jones' claims that the second
degree weapon possession count was duplicative and that the
prosecution failed to introduce sufficient evidence that he
forcibly stole property and had the intent to steal property,
because they were unpreserved, declined to review the claims "in
the interest of justice," and held that were it to review the
claims, it would reject them. People v. Jones, 260 A.D.2d at
248, 686 N.Y.S.2d at 706.
"[I]n order to preclude federal review [under the adequate and
independent doctrine], the last state court to render judgment
must `clearly and expressly state . . . that its judgment
rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d
at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724).*fn5 The
Second Circuit has made clear that "federal habeas review is
foreclosed when a state court has expressly relied on a
procedural default as an independent and adequate state ground,
even where the state court has also ruled in the alternative on
the merits of the federal claim." Velasquez v. Leonardo, 898
F.2d at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n.
10, 109 S.Ct. at 1044 n. 1 ("a state court need not fear
reaching the merits of a federal claim in an alternative
holding"); Garcia v. Lewis, 188 F.3d 71, 77-82 (2d Cir. 1999);
Glenn v. Bartlett, 98 F.3d at 724-25.*fn6 Thus, "as long as
the state court explicitly invokes a state procedural bar rule
as a separate basis for decision," the adequate and independent
doctrine "curtails reconsideration of the federal issue on
federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109
S.Ct. at 1044 n. 10.*fn7
The First Department here specifically stated that both of
these claims were unpreserved, although it also stated that if
it were to review the merits, the claims would still fail.
People v. Jones, 260 A.D.2d at 248, 686 N.Y.S.2d at 706.
State courts are not required to use any particular language:
We encourage state courts to express plainly, in
every decision potentially subject to federal review,
the grounds upon which their judgments rest, but we
will not impose on state courts the responsibility
for using particular language in every case in which
a state prisoner presents a federal claim — every
state appeal, every denial of state collateral review
— in order that federal courts might not be bothered
with reviewing state law and the record in the case.
Coleman v. Thompson, 501 U.S. at 739, 111 S.Ct. at
2559.*fn8 Furthermore, unlike the situation where the state
court holds that claims were either unpreserved or without
merit, which the Second Circuit has found to be too ambiguous to
preclude habeas review, see Tankleff v. Senkowski,
135 F.3d 235, 247 (2d Cir. 1998); Reid v. Senkowski, 961 F.2d 374, 377
(2d Cir. 1992), the First Department's use of the conjunctive
"and" rather than the disjunctive "or" clearly shows that the
First Department found these claims to be unpreserved. People
v. Jones, 260 A.D.2d at 248, 686 N.Y.S.2d at 706. Therefore,
the First Department's denial of these claims rested on a state
procedural ground. See, e.g., Glenn v. Bartlett, 98 F.3d at
724-25 (state decision which denied a claim as "not preserved
for appellate review" represented an independent and adequate
state procedural ground even though court addressed merits of
claim "in interests of justice"); Velasquez v. Leonardo, 898
F.2d at 9 (state decision which denied claims as procedurally
barred but then alternatively addressed merits rested on
adequate and independent state grounds); Williams v. Artuz,
No. 98-CV-5130, 2000 WL 915074 at *7 (E.D.N.Y. July 5, 2000)
("Here, the Appellate Division held that the sufficiency claim
was unpreserved. . . . That the Appellate Division went on to
find, in the alternative, that [petitioner]'s claim failed on
the merits as well does not lift the procedural bar."); Cruz v.
Greiner, 1999 WL 1043961 at *13 (claims First Department held
to be "unpreserved and without merit" not cognizable on habeas
review); Siri-Fernandez v. Keane, No. 97-CV0670, 1999 WL
890777 at *3 (E.D.N.Y. Sept. 30, 1999); Torres v. Irvin,
33 F. Supp.2d at 274; Santiago v. People of the State of New York,
1998 WL 803414 at *4 (First Department's decision that claim was
"unpreserved and without merit" bars habeas review); Guzman v.
Lacy, 1998 WL 512954 at *6; Nieves v. Smith, 96 Civ. 3650,
1997 WL 289730 at *3 (S.D.N.Y. May 30, 1997); Williams v.
Bennet, 1998 WL 236222 at *6; Vera v. Hanslmaier, 928 F. Supp.
The First Department here did not specify the procedural
ground on which it found these two claims to be unpreserved. The
State's First Department brief, however, argued that Jones only
"moved to dismiss the robbery count [at the close of trial] on
the sole ground that he had not been identified as one of the
robbers." (State 1st Dep't Br. at 21, citing 11/6/95 Tr. 154.)
The State also argued that Jones' "duplicative" second degree
weapons argument was required to be raised, but was not raised,
before the trial court. (State 1st Dep't Br. at 28.)
The colloquy at the close of trial on motions for trial orders
of dismissal was as follows:
MR. CANFIELD [JONES' COUNSEL]: Judge, for the
defendant Jones, I move for a trial order of
The People have failed to prove a legally
sufficient case, specifically as to robbery, in the
first degree, two counts. There was no victim who
identified my client as the perpetrator of a
robbery, nor was there any identification, either
in court or out of court, police arranged, which
identified my client as a victim of a robbery.
That charge should not go to the jury.
As to criminal possession of a weapon, in the
second degree, the .9 millimeter and a .380 caliber
weapon, there was no proof that the People proved
that my client shared the criminal intent to use
that weapon unlawfully.
As to the final two counts, possession of a
weapon, in the third degree, again, there was no
indication that my client ever possessed a .380
There is no presumption which would apply in
this case. That was in the hands of decedent, Mr.
As to the .9 millimeter, there was conflicting
and different testimony as to whether or not he
possessed that .9 millimeter.
Those are my motions to dismiss at the close of
the People's case.
(11/6/95 Tr. 154-55.) The trial judge denied those motions.
(11/6/95 Tr. 157.)
Jones was required to raise his sufficiency of the evidence
and duplicative indictment claims before the trial court, but
did not. See, e.g., People v. Gray, 86 N.Y.2d 10, 19-22,
629 N.Y.S.2d 173, 176-77, 652 N.E.2d 919 (1995) (specific objection
required to preserve insufficiency of evidence claim) (citing
CPL § 470.05, New York's contemporaneous objection rule);
People v. Fisher, 223 A.D.2d 493, 494, 637 N.Y.S.2d 382, 383
(1st Dep't) (claim that charges in indictment are duplicative
unpreserved where not raised before the trial court), appeal
denied, 88 N.Y.2d 936, 647 N.Y.S.2d 169, 670 N.E.2d 453
The Second Circuit has held that the failure to object at
trial when required by New York's contemporaneous objection
rule, CPL § 470.50*fn11, is an adequate and independent state
ground. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90,
97 S.Ct. 2497, 2506-08, 53 L.Ed.2d 594 (1977) (contemporaneous
objection rule is an adequate and independent state ground);
Murray v. Carrier, 477 U.S. 478, 485-92, 497, 106 S.Ct. 2639,
2644-48, 2650, 91 L.Ed.2d 397 (1986) (same); Glenn v.
Bartlett, 98 F.3d at 724-25; Velasquez v. Leonardo, 898 F.2d
at 9 (violation of New York's contemporaneous objection rule is
an adequate and independent state ground); Williams v. Artuz,
2000 WL 915074 at *7 (failure to make specific objection
regarding sufficiency of evidence constituted adequate and
independent state ground); Kearse v. Walker, 123 F. Supp.2d 652,
656-57 (S.D.N.Y. 2000); (same); Siri-Fernandez v. Keane,
1999 WL 890777 at *3 (same).*fn12
Because there is an adequate and independent finding by the
First Department that Jones procedurally defaulted on these
claims, Jones would have to show in his habeas petition "cause
for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of
justice." Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at
2565.*fn13 Jones failed to allege cause and prejudice or that
a fundamental miscarriage of justice would result if these
claims were not addressed. Therefore, Jones' third and part of
habeas claim are barred from habeas review.
II. JONES' CLAIM THAT THERE WAS INSUFFICIENT EVIDENCE THAT
HE SHARED HIS CO-DEFENDANT'S INTENT AS TO THE SECOND DEGREE
WEAPONS COUNT IS WITHOUT MERIT
The First Department reviewed on the merits, and rejected,
Jones' claim as to his not sharing Scott's intent as to the
second degree weapon count. People v. Jones, 260 A.D.2d 247,
248, 686 N.Y.S.2d 706, 706 (1st Dep't), appeal denied,
93 N.Y.2d 973 & 979, 695 N.Y.S.2d 58 & 65, 716 N.E.2d 1103 (1999).
Thus, that portion of Jones' first habeas claim must be reviewed
on the merits.
"[T]he Due Process Clause of the Fourteenth Amendment protects
a defendant in a criminal case against conviction `except upon
proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.'" Jackson v.
Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d
560 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct.
1068, 1073, 25 L.Ed.2d 368 (1970)). However, "a properly
instructed jury may occasionally convict even when it can be
said that no rational trier of fact could find guilt beyond a
reasonable doubt. . . ." Jackson v. Virginia, 443 U.S. at 317,
99 S.Ct. at 2788. Accordingly, "in a challenge to a state
criminal conviction brought under 28 U.S.C. § 2254 — if the
settled procedural prerequisites for such a claim have otherwise
been satisfied — the applicant is entitled to habeas corpus
relief if it is found that upon the record evidence adduced at
the trial no rational trier of fact could have found proof of
guilt beyond a reasonable doubt." Jackson v. Virginia, 443
U.S. at 324, 99 S.Ct. at 2791-92.*fn14
Petitioner Jones bears a very heavy burden:
[T]he standard for appellate review of an
insufficiency claim placed a "very heavy burden" on
the appellant. Our inquiry is whether the jury,
drawing reasonable inferences from the evidence, may
fairly and logically have concluded that the
defendant was guilty beyond a reasonable doubt. In
making this determination, we must view the evidence
in the light most favorable to the government, and
construe all permissible inferences in its favor.
United States v. Carson, 702 F.2d 351, 361 (2d Cir. 1983)
(citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct.
2456, 2457, 77 L.Ed.2d 1335 (1983).*fn15
The habeas court's review of the jury's findings is limited:
[T]his inquiry does not require a court to "ask
itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt."
Instead, 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. This familiar standard gives full
play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789
(citations & emphasis omitted).*fn16
The Jackson v. Virginia "standard must be applied with
explicit reference to the substantive elements of the criminal
offense as defined by state law." Jackson v. Virginia, 443
U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; accord, e.g., Green
v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a
petition for a writ of habeas corpus based on insufficient
evidence to support a criminal conviction in the state courts, a
federal court must look to state law to determine the elements
of the crime.").*fn17
Here, Jones was convicted of second degree criminal possession
of a weapon (11/7/95 Tr. 317-21), which is statutorily defined
A person is guilty of criminal possession of a
weapon in the second degree when, with intent to
use the same unlawfully against another: . . . (2)
he possesses a loaded firearm. . . .
P.L. § 265.03(2).
The jury is permitted to "draw reasonable inferences from
basic facts to ultimate facts." Jackson v. Virginia, 443 U.S.
at 319, 99 S.Ct. at 2789.*fn18 "`[I]ntent may be inferred
from the defendant's conduct and the surrounding
circumstances.'" Vera v. Hanslmaier, 928 F. Supp. at 284
(quoting Anderson v. Senkowski, 1992 WL 225576 at *4).*fn19
As the Second Circuit has explained:
What we review here is [petitioner's]
intent. . . . To show intent the government must
prove what was in the mind of the accused.
Commentators agree that it is seldom possible to
present testimonial or direct evidence of an
accused's state of mind. Intent as a separate item
of proof does not commonly exist. Thus, whenever
intent is an element of a crime, its existence must
be inferred by considering the laws that generally
govern human conduct. Because intent is formed in
the mind in secrecy and silence and the human mind
functions at a speed impossible to measure, a
determination of whether a deliberate intent was
formed must be drawn from all the circumstances of
the case. Circumstantial evidence of this
subjective fact is therefore indispensable.
Circumstantial evidence is as persuasive as direct
evidence. With each, triers of fact must use their
experience with people and events to weigh
Mallette v. Scully, 752 F.2d at 32 (citations