The opinion of the court was delivered by: JOHN GLEESON, District Judge
Petitioner Livingston Gayle, an inmate at the Shawangunk Correctional
Facility, seeks habeas corpus relief from a judgment of conviction
entered after a jury trial in state court. I held oral argument by
telephone conference on March 12, 2004. For the reasons set forth below,
the petition is denied.
The government's evidence at trial established that on September 23,
1981, Jeffrey Albert, armed with a knife, challenged Livingston Gayle to
a fight. Gayle accepted the challenge by shooting Albert with a gun.
After Albert fell to the ground, Gayle ran down the block, but then
returned to the scene to shoot Albert while Albert was attempting to
crawl under a car for protection. Albert died from his gun shot wounds.
After this incident, Gayle fled New York and lived as a fugitive until
his capture in Massachusetts on October 7, 1996, nearly fifteen years
after he was originally charged for his crimes. On October 17, 1996, the
grand jury voted to indict him on two counts of murder in the second
degree, one count of criminal possession of a weapon in the third degree
and one count of criminal possession of a weapon in the fourth degree.
Unbeknownst to the government, on that date, Gayle was extradited from
Massachusetts and arrested in Kings County. On October 21, 1996, Gayle
appeared in court and served his notice to testify in the grand jury
pursuant to N.Y. Crim. Proc. Law § 190.50(5)(a). The government
informed Gayle that the indictment had been voted but not filed, and
offered to expunge the vote to allow Gayle to testify before that same
grand jury. Gayle refused on the ground that he wished to testify before
a new grand jury.
The government thereupon filed the indictment, and Gayle moved to
dismiss it. In denying the motion, the court ruled, in relevant part,
A literal reading of the statute from which the
defendant's right to appear in the grand jury
derives reveals that . . . the defendant may
be afforded an opportunity to testify in the grand
jury ". . . at any time prior to the
filing of the indictment. . . ." CPL
190.50(5)(a). The defendant may exercise this
right even when, as here, the charges have already
been submitted to the grand jury and the grand
jury has already voted to indict him. . . . [T]he
People were not required to re-present the
case to a different grand jury in order to afford
the defendant an opportunity to appear before a
different grand jury.
People v. Gayle, Indict. No. 13188-96 (N.Y.Sup.Ct.
Kings County Mar. 14, 1997) (J. Dabiri) (citations omitted).*fn1
Gayle presented a justification defense at trial. He testified that
Albert lunged at him with a knife and threatened to kill him, at which
point Gayle jumped backwards, pulled out his gun, and fired. He further
testified that once he returned to the scene after running away, Albert
grabbed his lower body and swung his knife at him, causing Gayle to fire
another shot to escape Albert's hold on him and to flee the area. After
deliberations, the jury convicted him of one count of murder in the
second degree. He was sentenced to an indeterminate term of imprisonment
of twenty-two years to life.
In June of 2000, Gayle, through counsel, appealed his judgment of
conviction to the Appellate Division, Second Department. Appellate
counsel claimed that the government deprived Gayle of his right to
testify to a grand jury that had not yet voted to indict him, and that
the court improperly marshaled the evidence during its justification
charge to the jury. The Appellate Division rejected this challenge and
affirmed Gayle's conviction on March 12, 2001. People v.
Gayle, 721 N.Y.S.2d 776 (2d Dep't 2001). It determined that,
Contrary to the defendant's contention, there was
no violation of his right to appear before the
Grand Jury pursuant to CPL 190.50. . . . .
[T]he defendant gave notice to appear before the
Grand Jury after it had voted to indict, albeit
before the indictment was filed. Therefore, he was
properly relegated to testifying before a Grand
Jury which had already voted to indict.
The court's justification charge was balanced and
the court only marshalled [sic] the evidence to
the extent necessary to explain the application of
the law to the facts.
Id. (citations omitted). On August 21, 2001, the New York
Court of Appeals denied Gayle's application for leave to appeal his
conviction. People v. Gayle, 96 N.Y.2d 918 (2001).
In the instant petition for a writ of habeas corpus, Gayle raises the
same two claims ...