The opinion of the court was delivered by: Kevin Nathaniel Fox, United States Magistrate Judge
REPORT and RECOMMENDATION
TO THE HONORABLE RICHARD M. BERMAN, UNITED STATES DISTRICT JUDGE
Petitioner DeAndre Williams ("Williams") has made an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Williams contends that his confinement by the State of New York is unlawful, in essence, because the trial court presented for the jury's consideration the crime of assault in the second degree, as a lesser included offense of the crime, assault in the first degree. In doing so, petitioner contends, the trial court violated New York's Criminal Procedure Law and his Fourth, Fifth, Sixth, and Fourteenth Amendment rights because the crime assault in the second degree was not charged in the indictment returned against him by a grand jury and was not the subject of his criminal trial.
Respondent opposes petitioner's application. He maintains that the lesser included offense was properly submitted to the jury for its consideration and that Williams' claim to the contrary is without merit. Furthermore, the respondent alleges that, due to a procedural default with respect to the instant claims, petitioner is not entitled to habeas corpus relief.
In March 1998, a Westchester County grand jury returned a six count indictment against petitioner charging him with attempted assault in the second degree, criminal mischief in the third degree, two counts of assault in the first degree and two counts of endangering the welfare of a child. These charges stemmed from events occurring on September 7, 11, and 23, 1997. Petitioner pleaded not guilty and proceeded to trial before a jury in Westchester County Court. At the trial, petitioner represented himself with the aid of "standby" counsel.
On September 7, 1997, Williams and his former girlfriend, Gwendolyn Wilson ("Wilson"), had an altercation at her home. She claimed that, during a struggle, Williams injured her with a knife and forcibly removed dentures from her mouth. Petitioner alleged that Wilson was the aggressor and that when he sought to wrestle the knife from her, his fingernails scratched her.
On September 11, 1997, between 8:00 a.m. and 8:30 a.m., Wilson's downstairs neighbor, Philip Grayer ("Grayer"), a security guard, observed a ladder outside their home leaning against a window of Wilson's apartment. Grayer removed the ladder from the window and then searched the building's interior. He discovered that Wilson's apartment had been ransacked. The furniture had been "cut up," "a big knife was sticking into [a] chair," and paint or blood had been splashed around the apartment. On closer inspection, Grayer found that clothing had been placed in the toilet and in the bathtub, and that a white powder had been sprinkled throughout each room of the apartment. Grayer returned to his own apartment and contacted Wilson to report what he had observed in her home. At this time, Wilson's family was staying at the home of her friend, Stephanie Berry ("Berry"). After speaking with Grayer, Wilson contacted the police and then met police personnel at her apartment.
During the trial, Andrew Mayers ("Mayers"), who was acquainted with Williams and Wilson, testified that on the morning of September 11, 1997, he encountered Williams approximately one block from Wilson's home. Mayers recalled that he observed Williams crouching behind an automobile. Williams called to Mayers and they had a conversation. Mayers testified that, during that conversation, Williams explained to him that he had just come "from destroying [Wilson's] apartment." Williams denied damaging Wilson's apartment. Moreover, he testified that he purchased the items that furnished Wilson's apartment.
On September 23, 1997, Wilson and her youngest daughter were at Berry's home with another child when someone knocked on the door. Wilson went to the door and inquired who was knocking. The person responded "Jessie" and proceeded to kick the door open. Wilson testified that the person who kicked the door was Williams. Wilson recalled for the jury that petitioner held a knife to her face and threatened to kill her if she screamed. Wilson testified that Williams demanded money and when she retrieved her pocketbook to get it, he snatched the pocketbook away from her and took a $100 bill from it. Wilson also claimed that Williams slashed her with the knife about her arms and face, dragged her along the hallway and punched and kicked her. At the end of the hallway, Wilson alleged that petitioner retrieved a metal Tonka toy truck and began "bashing" her about the face with it. Wilson stated that the two children watched as the assault unfolded. When the assault ended, Williams fled from Berry's home. Wilson summoned the police, and officers arrived with paramedics. Wilson was transported to a hospital where she received treatment. Wilson told the jury that, as a result of the September 23, 1997 assault, her face was stinging and swollen. Wilson explained to the jury that she also experienced a great deal of pain. She explained further that lacerations she suffered had to be sutured.
Williams testified in his own behalf at the trial and, among other things, denied being at Berry's home on September 23, 1997. He also presented witness testimony to support his alibi defense. Williams maintained that Wilson had fabricated her testimony to retaliate against him for, inter alia, reporting to the police information about illegal drug transactions in which persons closely related to Wilson had engaged.
Before permitting the jurors to hear the parties' closing arguments, the trial judge solicited from the parties requests respecting the legal instructions that would be presented to the jury. Among other things, Williams requested that the court instruct the jurors on the crime assault in the second degree so that they might consider it with respect to the first degree assault charges stemming from the events that occurred on September 23, 1997. He reasoned that the prosecution had not established the requisite degree of injury (serious physical injury) to support a conviction for assault in the first degree. The trial judge granted petitioner's request and agreed to present to the jurors, for their consideration, the crime assault in the second degree, as a lesser included offense of the crime assault in the first degree.
Petitioner was acquitted of all crimes the jurors considered except assault in the second degree. He appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, Second Department. There, he urged the court to upset his conviction because: the jury verdict was inconsistent, he did not receive a fair trial, he was not presented at the time of his sentencing with a transcript of the minutes of a 1980 conviction which was relied upon by the court, at the time of his sentencing, in ...