Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
SPERINGO v. MCLAUGHLIN
April 25, 2002
FRANK SPERINGO, PETITIONER,
HERBERT MCLAUGHLIN, SUPERINTENDENT OF HUDSON CORRECTIONAL FACILITY DEFENDANT.
The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.
Speringo was charged with second-degree murder and first-degree assault
on October 25, 1996. The State's case against Speringo was that on
September 17, 1996, after drinking alcohol, Speringo, an off-duty New
York City police officer, carried his loaded gun into a restaurant in the
Bronx. There he continued to drink alcohol, precipitated a fight with
Enrique Paulino ("Paulino") and shot two other restaurant patrons. In
that incident, Maria Rivas ("Rivas") was fatally shot and Robert Castillo
("Castillo") was wounded. On September 26, 1996, Speringo was convicted
of lesser included charges: second-degree manslaughter and third-degree
At trial, and over Speringo's trial counsel's ("Trial Counsel")
objections, the State introduced Section 105-01 of the Police
Department's Patrol Guide which provides that officers are authorized to
carry guns while off-duty but are recommended not to carry them when the
officer intends to drink alcoholic beverages (the "Patrol Guide"). (Trial
Transcript ("Tr.") at 428-29, 779-80.) The Court permitted its
introduction as relevant to show whether Speringo had a conscious
disregard for a known risk. (Tr. at 435.)
According to restaurant personnel who testified at trial, Speringo
already had been drinking before he arrived at the restaurant between
4:30 and 5 a.m. on September 17, 1996, with Ramon Vargas ("Vargas") and
another man. Despite the restaurant's rule against serving alcohol at
that hour, the waitress served the group drinks perhaps because Speringo
was a police officer. (Tr. at 281-83.) At neighboring tables sat Paulino
and his companions. Although none knew the precise cause, Speringo
subsequently started a fight with Paulino that resulted in the shooting
of Rivas and Castillo, two other restaurant customers.
According to the testimony of three witnesses — Paulino, Carlos
Sanchez ("Sanchez") and Elvis Paulino ("Elvis") — Speringo first
tripped Paulino as he passed Speringo's table. Vargas diffused the
situation by explaining that Speringo was merely drunk and the men shook
hands. After that interaction, Speringo threw ice at Paulino. In
response, Paulino approached Speringo to ask: "what's wrong with him."
Speringo responded by grabbing Paulino's shirt and the two fell down.
(Tr. at 140.) Bystanders shouted warnings that Speringo was a cop and the
men were separated by other customers, including Paulino's companions.
Indeed, it appeared that the crowd drew back from Speringo upon learning
that he was a police officer. After the two were separated, Paulino
looked down to straighten his shirt. When he looked up, Paulino saw
Speringo pointing a gun at the head of Sanchez. (Tr. at 141, 319, 822.)
Paulino grabbed Speringo's arm, bent it upward, and the gun fired a shot
that struck Rivas and Castillo. (Tr. at 141.) Paulino, with the aid of
his brother Elvis and the restaurant's manager, disarmed Speringo. The
manager confiscated the gun. At that point Paulino and his friends left.
Speringo put on a defense. First, he testified and admitted to having
had alcohol that night. (Tr. at 877, 883-84, 915.) He denied tripping or
throwing ice at Paulino. (Tr. at 892.) He stated that Paulino approached
him aggressively and grabbed Speringo's shirt, causing him to slip off
his chair. The two men fell to the floor. On the floor, Paulino hit
Speringo a couple of times and Elvis kicked him. (Tr. at 892-94.) Also
while he was on the floor, Speringo's shirt came undone and his gun was
revealed. Paulino attempted to take the gun when Speringo pushed him
off. Speringo stood up carrying the gun with his finger on the safety
guard. (Tr. at 894-98.) He was surrounded by Paulino, Elvis and their
companions when Paulino grabbed at the gun and put his finger on the
trigger. During the struggle between Speringo, Paulino and Sanchez, the
gun went off. (Tr. at 899-400.) Speringo argued that he was not the one
who killed Rivas or Castillo.
After the shooting, Speringo went to Columbia Presbyterian Hospital.
There was no evidence that he saw a doctor for treatment of injuries he
suffered from the fight or to evaluate whether he was under the influence
of alcohol. Trial Counsel introduced photographs of Speringo's injuries
taken at some point after the fight.
Robert Gianelli ("Gianelli"), executive officer of the New York City
Police Department's Special Operations Division, also appeared for the
defense. Gianelli testified that, at Columbia Presbyterian Hospital
several hours after the shooting, he met with Speringo and found him fit
for police duty rather than inebriated.
Trial Counsel did not call Vargas as a witness. According to Speringo,
Trial Counsel did not personally interview Vargas prior to making the
decision not to call Vargas. However, Trial Counsel did have a private
investigator working for the defense interview Vargas.
During summation, the State focused on the jury's role in evaluating
witness credibility. In that vein, the prosecutor commented on the
"honesty and the decency" of the restaurant employees who testified.
(Summ. at 30.) He opined on the interests and motivations of each
witness, and vouched for the credibility of other witnesses called by the
State (Summ. at 7, 38-40, 42, 52, 63-64). Finally, the prosecutor
commented on Speringo's testimony and credibility. (Summ. at 7, 67-95.)
The jury returned a verdict on the lesser included charges.
Speringo filed a direct appeal raising four issues, whether: (1)
testimony regarding the Patrol Guide concerning the carrying of weapons
by officers who are off-duty, which provisions are precatory, was
properly received into evidence; (2) the evidence was sufficient to
sustain the verdict; (3) the prosecutor's summation constituted
misconduct; and (4) the sentence was excessive. of these direct appeal
issues, Speringo raises only the first and third in his habeas petition.
On appeal, Speringo first argued that the Patrol Guide evidence should
not have been introduced in a criminal prosecution to show a standard of
conduct. (See Defendant Appellant's Brief, at 15-18 (relying on New York
state law).) This error was not harmless, he reasoned, because "instead
of focusing on what happened, the jury was told to focus instead on
whether defendant violated an internal "rule.'" (Id. at 18.)
The State opposed Speringo's direct appeal, relying only on New York
state law in its brief. The New York State Supreme Court, Appellate
Division, denied Speringo's appeal. In particular, it found that the
Patrol Guide evidence was properly admitted into evidence and that
Speringo's challenge to the State's summation was not preserved for
appeal. Nevertheless, the Appellate Division commented that were it to
reach those claims, it would find that:
[T]he challenged comments were responsive to the defense
summation and were based on the evidence, and that, since
defendant presented a defense, the People properly
commented on defendant's failure to call the father of
his girlfriend [Vargas].
People v. Speringo, No. 9967/95, Slip. Op. at 2 (N.Y. App. Div. 1st
Dep't Feb. 23, 1999) (the "Direct Appeal"). Speringo sought to appeal the
issue of the introduction of the Patrol Guide into evidence. The New York
Court of Appeals denied Speringo permission to appeal. See People v.
Speringo, No. 9967/95, Slip. Op. at 1 (N.Y. May 5, 1999.)
Speringo obtained new counsel and brought a collateral attack in New
York State Supreme Court, New York County, to vacate the judgment, made
pursuant to N.Y. Crim. Proc. L. ("CPL") § 440.10 and 440.30, asserting
that (1) Speringo was denied effective assistance of trial counsel in
violation of the Sixth Amendment to the United States Constitution and
Article 1, Section 6 of the New York State Constitution and (2) Speringo
was denied access to exculpatory evidence allegedly contained in the
fingerprint report, in violation of the disclosure requirement set forth
in Brady v. Maryland, 373 U.S. 83 (1963). The State opposed Speringo's
The State Supreme Court denied Speringo's collateral attack in its
entirety. See People v. Speringo, No. 9967/95, Slip Op. at 2 (N.Y.
Sup.Ct. July 24, 2000) (the "Collateral Attack"). The Supreme Court found
that, even though the fingerprint report was not listed on the Voluntary
Disclosure Form or the Rosario material list of prior statements made by
witnesses for the prosecution, see Peogle v. Rosario, 173 N.E.2d 881
(N.Y. 1961), "the transcript of the trial makes perfectly clear that
counsel had received this fingerprint report and had decided to exploit
the State's failure to determine to whom the two prints "of value'
belonged, since they did not belong to defendant." Collateral Attack at
Speringo moved for leave to appeal. The Appellate Division, First
Department, denied Speringo leave to appeal. See People v. Speringo, No.
M — 4768, Slip. Op. at 1 (N Y App. Div. 1st Dep't Sept. 28, 2000).
On October 23, 2000, Speringo filed the instant petition.
Clearly established federal law refers to the holdings only, not the
dicta, of the United States Supreme Court. See Morris, 264 F.3d at 46.
The state court's application of clearly established federal law must be
objectively unreasonable, not merely erroneous. See Williams, 529 U.S. at
387 n. 14; accord Clark v. Stinson, 214 F.3d 315, 320-21 (2d Cir. 2000)
Speringo seeks habeas corpus relief on four legal theories. First, he
claims that his Sixth Amendment right to effective assistance of counsel
was denied by Trial Counsel's failure to: (1) obtain a copy of, and
request sanctions for the State's failure to produce, the fingerprint
report; (2) order particular individuals to submit their fingerprints for
comparison purposes; (3) personally interview a witness before deciding
against calling the witness; (4) obtain hospital records or witnesses;
(5) object to the Prosecution's summation; and (6) request a
justification defense charge. As ...