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July 31, 2003


The opinion of the court was delivered by: Harold Baer, Jr., District Judge[fn1] [fn1] James Barney. a second year law student at New York Law School, contributed to the research and writing of this opinion.


Pedro Gutierrez filed the instant habeas corpus petition pursuant to 28 U.S.C. § 2254 to challenge the validity of his conviction. Specifically, Gutierrez alleges that (1) the trial court erroneously admitted the recording of a 911 call under the "present sense impression" hearsay exception and (2) the evidence is insufficient to prove his guilt of depraved indifference murder. For the following reasons, the petition is dismissed.


On the evening of February 26, 1994, Jose Torres, Elliot Herbas, and Gutierrez, who were members of a gang that sold crack cocaine predominately on the corner of 184th Street and Creston Avenue, confronted Jose Pagan, a member of a rival drug gang, and demanded that he cease selling drugs in the area. After a verbal dispute with Pagan, Jose Torres fired a shot at Pagan, who was in a crowd of people in front of a bodega, apparently to scare but not injure him. Torres Tr. at 606, 608, 700-702. At or around that moment, Torres decided he had to kill Pagan and began shooting in his direction as Pagan attempted to flee by running towards his drug partner, Julian Alamo. Torres Tr. at 608, 702-04, 734; Herbas Tr. at 905. After Torres opened fire, Herbas and Gutierrez started firing their weapons in Alamo's direction. Herbas Tr. at 903. Although Torres had not ordered or signaled them to shoot, they just "reacted" to the situation after Torres started shooting and began firing their weapons on their own. Torres Tr. 825-26; Herbas Tr. at 936. Both Herbas and Gutierrez fired all of the bullets in their gun within a span of 5 to 7 seconds. Torres Tr. at 611-13, 734; Herbas Tr. 904-905; Arroyo Tr. 1000. Less than three minutes after the incident, an anonymous motorist called 911 and reported that he observed, three male youths, comprising a mix of Hispanic and black, bearing guns.*fn2 The caller estimated that ten shots were fired, although, based on the number of spent shells and bullets that the police recovered, at least 13 shots were fired. The caller further reported visually observing flashes from the guns. Although the caller indicated that the shooting occurred in the vicinity of 183rd Street and Grand Concourse, he then corrected himself, stating that the shooting took place on 183rd Street and Morris Avenue. The recorded 911 call was admitted at trial over Gutierrez's objection.

On June 11, 1996, a jury found Gutierrez guilty of murder in the second degree (N.Y. Penal Law § 125.25(1)), attempted murder in the second degree (N.Y. Penal Law § 125.25(1)), assault in the second degree (N.Y. Penal Law § 125.05(4)), reckless endangerment in the first degree (N.Y. Penal Law § 120.25) and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03). He received the following sentences of imprisonment, to be served consecutively: 15 years to life for second-degree murder, 7 1/2 to 15 years for attempted second-degree murder, and 3 1/2 to 7 years for first degree reckless endangerment.*fn3

On direct appeal to the Appellate Division, First Department, Gutierrez argued that:

(1) the trial court erroneously admitted, over defense objection, the 911 tape under the "present sense impression" exception to the rule against hearsay, despite the fact that the 911 call was made about three minutes after the event described had ended;

(2) the evidence was insufficient to prove appellant's guilt of depraved indifference murder, because (a) Pagan's murder was an intentional act, or (b) alternatively, the State simply failed to prove the elements of that crime as defined in the court's charge; and

(3) the imposition of consecutive sentences for depraved indifference murder and first-degree reckless endangerment was illegal, because both counts arose from the same criminal transaction and the latter are material elements of the former.

On March 26, 1998, the Appellate Division summarily decided that the 911 call was sufficiently contemporaneous to qualify for admission under the present sense impression exception, and that in any event, admission of the tape was "harmless in view of the overwhelming evidence of defendant's guilt." People v. Gutierrez, 248 A.D.2d 295, 295 (1st Dep't 1998). In addition, the Appellate Division held that the evidence of defendant's guilt of depraved indifference murder was legally sufficient and that, because "separate acts toward separate victims were involved, the court properly imposed consecutive sentences for the reckless endangerment and murder convictions." Id.

On April 15, 1998, Gutierrez sought leave to appeal to the New York State Court of Appeals, see Resp. Exh. 3, Leave Letter, which the court denied on May 4, 1998. People v. Gutierrez, 91 N.Y.2d 1007 (1998). On August 21, 1998, Gutierrez's counsel moved for reconsideration of the court's denial. See Resp. Exh. 6, Letter in Support of Motion for Reconsideration. Although the court granted Gutierrez's motion for reconsideration on September 4, 1998, it ultimately adhered to its earlier decision. People v. Gutierrez, 92 N.Y.2d 925 (1998). Gutierrez did not file a petition seeking a writ of certiorari from the United States Supreme Court. On or around the third week of October 1999, Gutierrez filed his habeas corpus petition pursuant to 28 U.S.C. § 2254. Gutierrez raised two of the same claims advanced in his state court appeal. See infra. I referred the habeas petition to Magistrate Judge Kevin N. Fox on February 20. 2000 for a Report and Recommendation, and the habeas petition became sub judice on May 10, 2002. 1 withdrew the order of reference on March 3, 2003 to expedite a decision on the habeas petition.


A. Timeliness

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year statute of limitations on habeas corpus petitions. 28 U.S.C. § 2244 (d)(1). Respondent expends considerable ink arguing that the current petition is untimely because Gutierrez filed it thirteen and a half months after the New York State Court of Appeals denied his application for leave to appeal. "The AEDPA limitations period specified in § 2244(d)(1)(A) does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek direct review via certiorari has expired." Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Gutierrez's conviction did not become final until 90 days after ...

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