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HECTOR v. MILLER

June 15, 2004.

DENNIS HECTOR, Petitioner,
v.
DAVID MILLER, Superintendent, Eastern Correctional Facility, Respondent.



The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Dennis Hector brings this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in Bronx County Supreme Court, Hector was convicted of Assault in the First Degree and was sentenced to seven years in state prison. He is currently incarcerated pursuant to that judgment at Sullivan Correctional Facility in Fallsburg, New York. For the following reasons, the petition should be denied.

I. BACKGROUND

  Hector's conviction arises out of the May 3, 1999 shooting of Richard Whitter at a gift shop on the corner of 225th Street and White Plains Road in the Bronx. As a result of the shooting, Whitter sustained injuries to his right shoulder and right thigh. The evidence presented at trial is not relevant to the disposition of the instant petition and thus will not be discussed further.

  A. Indictment

  By indictment filed June 7, 1999, Hector was charged with Attempted Murder in the Second Degree, two counts of Assault in the First Degree, and a number of weapons-related counts. Indictment No. 3374/99, dated May 26, 1999 ("Indictment") (reproduced as Ex. 1 to Affidavit in Opposition, filed October 31, 2003 (Docket #5) ("Resp. Opp.")). The first count of Assault in the First Degree (Count Two of the Indictment) charged Hector with intentionally causing serious physical injury to Whitter by means of a loaded firearm. Id. at 2; see also N.Y. Penal Law § 120.10(1). The second count of Assault in the First Degree (Count Three of the Indictment) charged Hector with recklessly engaging in conduct which created a grave risk of death under circumstances demonstrating depraved indifference to human life and thereby causing serious physical injury to Whitter. Indictment at 3; see also N.Y. Penal Law § 120.10(3).

  On August 19, 1999, Hector filed an omnibus motion requesting, inter alia, that the court inspect the Grand Jury minutes and dismiss the Indictment on the ground that the instructions given to the Grand Jury were improper and incomplete. See Notice of Omnibus Motion, dated August 19, 1999 (reproduced as Ex. 2 to Resp. Opp.), ¶ C. On October 6, 1999, the trial court granted the motion in part by dismissing Count Two of the Indictment, which charged Hector with intentional assault. See Order, dated October 6, 1999 (reproduced as Ex. 3 to Resp. Opp.), at 1-2. The court did so because the prosecutor had erroneously instructed the Grand Jury that Court Two required proof of intent to cause "physical injury" rather than "serious physical injury." Id. at 2. Count Three of the Indictment, which charged Hector with reckless assault, was not dismissed.

  B. Jury Instructions

  Hector's trial began on June 20, 2000. During a preliminary charge conference on the first day of testimony, June 23, 2000, the judge stated that he "would probably be inclined to limit the decision making job for the jury" and instruct them only as to Attempted Murder in the Second Degree and Assault in the First Degree. (Tr. 46). Neither side objected to those two counts being submitted to the jury. (Tr. 46). A few days later, on June 27, 2000, the court provided counsel with a copy of the proposed jury instructions, including "the specific elements of the two crimes to be submitted to the jury." (Tr. 220-21). These proposed jury instructions identified the Assault in the First Degree charge as being intentional assault, under subdivision (1) of Penal Law § 120.10, rather than the reckless assault under subdivision (3). See Order, dated October 12, 2000 ("Reinstatement Order") (reproduced as Ex. 4 to Resp. Opp.), at 2. Defense counsel indicated that he had reviewed the proposed charge and had no exceptions or requests. (Tr. 221). Both attorneys consented to the proposed verdict sheet, which also reflected the charge of intentional rather than reckless assault. (See Tr. 410-12; Reinstatement Order at 2).

  On June 28, 2000, the judge charged the jury, instructing them on two specific crimes: Attempted Murder in the Second Degree and Assault in the First Degree. (Tr. 491-519). With respect to the assault charge, the court's instruction was based only on intentional assault, not reckless assault. The relevant language of the charge was as follows:
The second and final count in the verdict sheet is the crime of assault in the first degree. Under our law, a person is guilty of assault in the first degree when with intent to cause serious physical injury to another person, he or she causes such injury to that person by means of a deadly weapon. . . . Intent means conscious[] objective or purpose. Thus, a person acts with intent to cause serious physical injury to another when that person's conscious[] objective or purpose is to cause serious physical injury to another. . . . In order for you to find the defendant Dennis Hector guilty of this crime, of assault in the first degree, the People are required to prove from all of the evidence in the case, beyond a reasonable doubt, each of the following two elements. One, that on or about May 3, 1999, in the County of the Bronx, the defendant Dennis Hector caused serious physical injury to Richard Whitter by means of a deadly weapon. And two, that the defendant did so with the intent to cause serious physical injury to Richard Whitter. (Tr. 515-16). Both parties stated on the record that they had no exceptions to the court's charge. (Tr. 519-20). On the second day of deliberations, in response to a request from the jury, the court read back the portion of the charge relating to the elements of the two crimes. (Tr. 542-47).
C. Discovery of a Mistake in the Jury Instructions
  As was made clear in papers filed as part of a later state habeas corpus proceeding, an off-the-record conference occurred at approximately 1:15 p.m. on the second day of deliberations following the read-back of the court's charge as to the elements of the crimes under consideration. See Affirmation in Support of Petition for Writ of Habeas Corpus, dated September 13, 2000 ("Def. Counsel Affirm.") (reproduced as Ex. 4 to Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed May 29, 2003 (Docket #1) ("Petition")), ¶¶ 7-9.*fn1 At that time, the prosecutor informed defense counsel and then the court that he realized that the court had charged the jury as to intentional assault rather than as to reckless assault, which was the only Assault in the First Degree count remaining in the Indictment. See id.; Reinstatement Order at 2.

  In response, the court proposed withdrawing the Assault in the First Degree count from the jury's consideration altogether; defense counsel opposed this proposal on the ground that it would "coerce" the jury into finding Hector guilty of the only remaining count, Attempted Murder in the Second Degree. See Reinstatement Order at 2; see also Tr. 552. The prosecutor proposed instead substituting the intentional assault count with a reckless assault count; defense counsel opposed this proposal as well. See Reinstatement Order at 2. While it is not reflected in the trial court's findings, defense counsel maintained that during this off-the-record conversation, he stated his intention to make a motion to dismiss should the jury return a guilty verdict on the erroneously submitted charge of intentional assault and the court indicated that such a motion would be granted. See Def. Counsel Affirm. ¶ 9.

  After the lunch break, at 2:35 p.m., the trial judge went on the record and stated that during the lunch break, three notes had come in from the jury — the first asking for the definition of reasonable doubt, the second pertaining to the jurors' belongings, and the third indicating that the jury had reached a verdict. (Tr. 548-50). Before bringing the jury down, the court asked both parties if they "wish[ed] to make a record as to the second count on the verdict sheet." (Tr. 550). Both parties stated that they did not wish to make such a record. (Tr. 550). The judge then stated on the record:
I feel then in light of the fact that the parties appear reluctant to make a record for whatever reasons, it was brought to the Court's attention, even though repeatedly from the inception of the actual trial proceedings, on whether both parties were consenting to two counts going to the jury, attempt[ed] murder two and assault in the first degree, assault with a deadly weapon and both parties on several occasions, my recollection is at least three and perhaps four [occasions], indicated assent to both counts going to the jury. There had been two counts in the original indictment of assault in the first degree. It escaped the Court's attention and apparently the [parties'] attention as well that when the Court rendered its decision on the sufficiency of the grand jury minutes back in October of last year, ten months ago, that two counts had been dismissed, including the one count of assault in the first degree, assault with a deadly weapon based on inadequate, clearly inadequate legal instructions which lead to [sic] the People to represent. No representation was ever had. So the only count of assault [in the] first degree that could have properly been before the jury was a count of depraved indifference assault. That was not requested by either party and was not in fact charged by this Court and accordingly, I would have. But for receiving this note indicating that a verdict has been returned, it was my intention at 2:15 to bring the jury down and tell the jury to ignore the second count on the verdict sheet for reasons that need not concern them. That was not a matter that was before them and they were not to speculate about why it was being taken from them, however, this final note from the jury has eliminated that as a possible action for this Court to take.
(Tr. 551-52).

  D. Verdict and Defendant's Motion

  The jury found Hector not guilty of Attempted Murder in the Second Degree and guilty of Assault in the First Degree. (Tr. 554). The jury was then ...


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