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GAYLE v. SENKOWSKI

March 16, 2004.

LIVINGSTON GAYLE, Petitioner, -against- DANIEL SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent


The opinion of the court was delivered by: JOHN GLEESON, District Judge

MEMORANDUM AND ORDER

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. Page 2

  BACKGROUND

  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, that,

  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 Page 3 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. Page 4 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 ...


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