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CARTER v. ARTUZ

June 19, 2001

GEORGE CARTER, PETITIONER,
V.
CHRISTOPHER ARTUZ, RESPONDENT.



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

ORDER

Petitioner George Carter brings this petition pro se pursuant to 28 U.S.C. § 2254 challenging his December 9, 1993 conviction in the New York State Supreme Court, Queens County. A jury found him guilty after trial of two counts of attempted murder in the first degree, three counts of attempted murder in the second degree, one count of criminal possession of a weapon in the second degree, one count of criminal possession of a weapon in the third degree, three counts of reckless endangerment in the first degree and one count of criminal possession of a weapon in the fourth degree. As is explained more fully below, the trial judge subsequently dismissed two of the three counts of attempted murder in the second degree as lesser included offenses.

Although petitioner never exhausted his claim that his appellate counsel was ineffective by filing a petition for a writ of error coram nobis, 28 U.S.C. § 2254(b)(2) gives the district court the discretion to deny a habeas corpus petition on the merits "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." Because, as is explained below, it is clear from the trial record that petitioner's claim concerning his appellate counsel lacks merit, I am exercising my discretion to deny the petition on the merits.

Sufficiency of the Evidence

A district court should grant habeas corpus relief based on a claim of insufficiency of the evidence only if it finds, upon the record evidence adduced at trial, that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This question must be reviewed in the light most favorable to the prosecution. See id. at 319, 99 S.Ct. 2781. To determine the essential elements of the crime, the habeas corpus court must look to state law, see id. at 324 n. 16, 99 S.Ct. 2781, and the evidence must be reviewed as a whole. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). "[A]ssessments of the weight of the evidence or the credibility of witnesses are for the [factfinder] and not grounds for reversal on appeal; we defer to the [factfinder's] assessments of both of these issues." Id. When faced with a record from which conflicting inferences may be drawn, the habeas corpus court must presume, even if the record does not show it affirmatively, that the trier of fact resolved the conflict in favor of the prosecution and must defer to that resolution. See Wright v. West, 505 U.S. 277, 296-97, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992).

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that petitioner had the intent to kill his wife, Police Officer Joseph Tetonic and Police Officer Joseph Walas with a loaded gun and, thus, that he had the requisite intent to be found guilty of both attempted murder in the first degree and criminal possession of a weapon in the second degree. See N.Y. Penal Law § 125.27(1)(a)(i) (crime of first degree murder requires "intent to cause the death" of a police officer); N.Y. Penal Law § 110.00 (crime of attempt requires "intent to commit a crime"); N.Y. Penal Law § 265.03 (crime of criminal possession of a weapon in the second degree requires "intent to use [weapon] unlawfully against another").

Specifically, both petitioner and his son testified that, early in the morning on February 27, 1993, petitioner and his wife were arguing in their apartment. See Tr. at 505, 530. At one point during the argument, petitioner swung a knife at his wife, and she ran out of the house to call the police. See Tr. at 506-08, 532. Officer Tetonic and Officer Walas testified that they responded to the call, and, after speaking with Ms. Carter, they accompanied her back to her apartment. See Tr. at 235-36, 389-90. When they arrived there, Ms. Carter knocked on the front door of the building, and petitioner appeared in a second floor window. See Tr. at 236, 391-92. According to their testimony, the officers asked petitioner to come downstairs so that they could talk to him. See Tr. 236, 392-93. Officer Walas testified that petitioner started yelling at Ms. Carter, stating that Ms. Carter "was being disrespectful to him, and she was abusing him." Tr. 392. In addition, Officer Walas said petitioner warned the officers that, if he came downstairs, they should be "prepared to defend" themselves. Tr. at 393. Similarly, Officer Tetonic stated that petitioner threatened, "[S]omebody was going to get hurt, somebody was going to die." Tr. 236; see also Tr. at 262. Both officers testified that petitioner said, "Today is a good day to die." Tr. at 237, 264, 266, 393.

According to his own testimony, petitioner retrieved a loaded gun from the bedroom and then returned to the window. See Tr. 535, 548. Officer Tetonic testified that he saw petitioner "hanging out of the window and he had the gun drawn in our direction, right at us, and he fired two rounds in our direction." Tr. at 237-38; see also Tr. at 264 ("I turned around, gun was pointed directly at me and he started shooting"). Officer Walas similarly testified that petitioner "fired two shots at my direction." Tr. at 393. Petitioner disappeared from the window, and the two officers and petitioner's wife ran for cover behind two parked cars. See Tr. at 265-66, 280, 394. According to Officer Tetonic, petitioner then "came to the window and he took the firearm in his hand and aimed it toward our direction and he fired another round at us." Tr. at 238; see also Tr. at 269. Officer Walas similarly testified that petitioner "reappeared from the window and fired a shot in our direction." Tr. at 394. Officer Tetonic stated that petitioner disappeared from the window again and then returned once more "with the firearm drawn in our direction." Tr. at 239.

Several hours after this incident, Sergeant Daniel King interviewed petitioner in the police precinct. According to Sergeant King's testimony, petitioner told him that, when his wife returned to the apartment with the police, he started arguing with her, and, when she didn't respond, he became "infuriated." Tr. at 489. Petitioner acknowledged that he went to get a gun and then pointed it out the window. See Tr. at 489-90. Petitioner also told Sergeant King that he had yelled to the police officers "that he didn't want to hurt them, he wanted to hurt her. And he fired several shots at her direction." Tr. at 490.

Notwithstanding this evidence, from which a rational jury could have inferred petitioner intended to kill his wife and the two officers, petitioner claims that he was so intoxicated during the relevant events that he could not have formed the requisite intent. Petitioner testified that he had been "doing quite a bit of drinking," Tr. at 529, that he was "very angry, out of control of liquor," Tr. at 532, and that he was "reasonably" drunk. Tr. at 545. The evidence at trial also included a hospital record, which was not made a part of the record on this petition, but, according to defense counsel's summation, it appears to have included a notation that petitioner was intoxicated. See Tr. 494, 579.

Based upon all of the evidence, however, a rational jury could have concluded that, even if petitioner was intoxicated at the time of the incident, he was lucid enough to form the requisite intent. See Dorst v. Coombe, No. CV-95-2874, 1996 WL 733072, *4 (E.D.N.Y. Dec. 11, 1996); Rivera v. Scully, 92 Civ. 6659, 1993 WL 454209, *3 (S.D.N.Y. Nov. 2, 1993), affd, 40 F.3d 1237 (2d Cir. 1994). Specifically, petitioner acknowledged that he was "fairly" able to remember what occurred during the incident, Tr. at 545, and, according to Sergeant King's testimony, petitioner provided a detailed statement to the police several hours later. In addition, despite his earlier testimony, petitioner repeatedly denied on cross-examination that he had "lost control" due to his drinking. Tr. at 544. Several of petitioner's actions also could have been viewed by a rational jury as evidence that his intoxication did not negate his intent. For example, petitioner's son testified that he saw his father load a shotgun in the kitchen, see Tr. at 527-28, and, upon surrendering to the police, petitioner also was capable of following their directions on how to disassemble his gun. See Tr. at 539-40. There was no evidence that petitioner was slurring his speech or that he was otherwise incapacitated. As a result, this claim does not entitle petitioner to habeas corpus relief.

Dismissal of Lesser Included Offenses

Petitioner also argues that he is entitled to habeas corpus relief because the two counts of attempted murder in the second degree relating to Officers Tetonic and Walas should have been dismissed as lesser included offenses of the two counts of attempted murder in the first degree relating to those same officers. The record shows that Justice Arthur J. Cooperman did dismiss the two counts of attempted murder in the second degree as "inclusory concurrent counts" in a decision dated December 9, 1993. See Resp. Ex. B. See also Sentencing Tr. at 8-9 (showing that petitioner was sentenced on two counts of attempted murder in the ...


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