United States District Court, S.D. New York
July 19, 2004.
ERNEST WILLIAMS, Petitioner,
JAMES WALSH, Respondent.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
TO THE HONORABLE HAROLD BAER, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Petitioner Ernest 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 unconstitutional because the evidence submitted at his trial
was insufficient for a jury to find him criminally culpable for
robbery in the second degree. He maintains that the judgment of
conviction must be modified to robbery in the third degree. The
respondent opposes Williams' application for a writ of habeas
corpus. He contends that Williams' claim is procedurally barred
and, in any event, lacks merit.
On May 25, 1999, Williams entered the Manhattan office of an
octogenarian semi-retired attorney. Williams was carrying
envelopes and mentioned several names to the attorney. Williams
was advised that none of the named persons was associated with
the attorney's office. Williams handed the attorney a slip of paper that contained a
woman's name and a telephone number. Williams was asked to leave
the attorney's office. He did not. Instead, Williams placed the
attorney in a choke hold that caused him to lose consciousness
for several minutes. Williams relieved the attorney of the cash
that was in the attorney's pants pocket. When the attorney
regained consciousness and discovered that he had been robbed, he
dialed the telephone number that appeared on the slip of paper
Williams had given to him earlier. The telephone number was
assigned to the home of Williams' former girlfriend. The robbery
victim made two telephone calls to Williams' former girlfriend.
During the second telephone call, he persuaded her to contact
security personnel at the building where his law office was
located. When Williams' former girlfriend did so, she was
connected to the New York City Police Department to whom she
reported the robbery on the victim's behalf.
Williams was apprehended and was later indicted by a New York
County grand jury. Williams proceeded to trial before a petit
jury. During the trial, the jury heard testimony from James Gill,
M.D., Associate Medical Examiner for the City of New York. Dr.
Gill testified on behalf of the prosecution. The prosecution
elicited uncontroverted testimony from Dr. Gill concerning the
physiological effect on the human body when a person loses
consciousness. Dr. Gill informed the jury that:
Losing consciousness is also known as passing-out,
and it can be due to a lot of different things, but
the ultimate problem is the brain not getting enough
oxygen. And when your brain senses that, it kind of
shuts down all of your voluntary systems and you pass
Under New York law, a person commits robbery in the second
degree when the person forcibly steals property and "[i]n the
course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (a)
[c]auses physical injury to any person who is not a participant
in the crime. . . ." New York Penal Law § 160.10. New York's
Penal Law explains that physical injury "means impairment of
physical condition or substantial pain." New York Penal Law §
The jury returned a verdict convicting Williams for robbery in
the second degree.
Following his conviction, Williams appealed from the judgment
of conviction to the New York State Supreme Court, Appellate
Division, First Department. He urged that court to reduce the
conviction he suffered for robbery in the second degree to
robbery in the third degree. Williams argued that the evidence
presented to the jury was legally insufficient to establish the
crime of robbery in the second degree because the victim did not
suffer either a physical impairment or substantial pain.
For its part, the prosecution asked the Appellate Division to
deny Williams' request for relief because he had failed to
preserve his claim of insufficient evidence for that court's
review. The prosecution noted that Williams' attorney had made
only a general protest at the close of the prosecution's case,
when he asked the trial court to issue a trial order of dismissal
because the prosecution had "failed to prove the case beyond a
reasonable doubt and there is not sufficient [evidence] [to]
submit the case to the jury." The prosecution claimed that,
without greater specificity, the protest raised by Williams'
counsel did not alert the trial court to the precise theory under
which he believed the evidence was wanting. Therefore, according
to the prosecution, the claim of insufficient evidence was not
preserved for appellate review.
The Appellate Division agreed with the prosecution. It found
that Williams' challenge to the sufficiency of the evidence
supporting the physical injury element of the offense robbery in the second degree "[was] unpreserved" for appellate review.
Notwithstanding that determination, the court noted that if it
reviewed the substance of Williams' claim it would find that, by
choking the robbery victim and causing him to lose consciousness,
Williams inflicted physical injury on the victim. See People
v. Williams, 294 A.D.2d 312-313, 742 N.Y.S.2d 544 (App. Div.
1st Dep't 2002). Williams applied for leave to appeal from
the decision of the Appellate Division to the New York Court of
Appeals. That application was denied by an associate judge of
that court on July 25, 2002. See People v. Williams,
98 N.Y.2d 703, 747 N.Y.S.2d 423 (2002). The instant application for
a writ of habeas corpus was made shortly thereafter.
Williams contends that he is entitled to the relief he seeks,
through the application for a writ of habeas corpus, because the
evidence presented at his trial by the prosecution did not
establish that the robbery victim suffered a physical injury,
specifically, substantial pain. Therefore, according to Williams,
the jury could not find him criminally culpable for the crime
robbery in the second degree.
A federal court may not review a question of federal law
decided by a state court if the state court's decision rested on
a state law ground, be it substantive or procedural, that is
independent of the federal question and adequate to support the
judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 So.
Ct. 2546, 2553-54 (1991). This proscription applies even in those
circumstances where a state court expressly relies on a
procedural default as an independent and adequate state law
ground but, nevertheless, has ruled in the alternative on the
merits of the federal claim. See Velasquez v. Leonardo,
898 F.2d 7, 9 (2d Cir. 1990). However, a habeas corpus petitioner may bypass the independent and
adequate state law ground by showing cause for the default and
prejudice attributable thereto or by demonstrating that a
fundamental miscarriage of justice will attend (that is, that the
petitioner is actually innocent of the crime for which he was
convicted), if the claim is not reviewed by the habeas court.
See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043
The Appellate Division did not dispose of the petitioner's
claim, that insufficient evidence supporting the element of
physical injury was presented at his trial by the prosecution, on
the merits. It found that the petitioner had failed to preserve
that issue for appellate review as is required by New York Law.
However, the court did note, alternatively, that the claim lacked
In most cases, a state procedural bar constitutes an adequate
and independent state law ground that is sufficient to preclude
federal habeas corpus review. "In exceptional cases, however, an
exorbitant application of a generally sound rule may affect the
adequacy and independence of the state procedural ground, and
allow the United States district court to consider the merits of
a constitutional claim." Rosa v. Herbert, 277 F. Supp.2d 342,
351 (S.D.N.Y. 2003) (quoting Lee v. Kemna, 534 U.S. 362, 376,
122 S.Ct. 877, 885 ); see also Bell v. Poole, No. 00
Civ. 5214, 2003 WL 21244625, at *9 (E.D.N.Y. Apr. 10, 2003) ("The
mere invocation of a procedural bar does not . . . automatically
preclude review in this court.").
The Second Circuit Court of Appeals has stated that a
procedural bar is adequate to support a state court judgment only
if it is based on a rule that is "firmly established and
regularly followed" by the state in question. Cotto v. Herbert,
331 F.3d 217, 239-41 (2d Cir. 2003); see also Garcia v.
Portuondo, No. 03 Civ. 2458, 2003 WL 22510390, at *4-5 (S.D.N.Y.
Nov. 4, 2003). Thus, the parties to an action must have notice of the
state procedural rule and the rule must be applied consistently
in similar circumstances. See Bell, 2003 WL 21244625, at *9.
Furthermore, a state procedural rule must serve a legitimate
state interest. See Rosa, 277 F. Supp.2d at 351; Smart v.
Scully, 787 F.2d 816, 820 (2d Cir. 1986). However, "the adequacy
of a state procedural bar is determined with reference to the
particular application of the rule; it is not enough that the
rule generally serves a legitimate state interest." Cotto, 331
F.3d at 240 (quoting Lee, 534 U.S. at 387, 122 S.Ct. at
891(internal quotation marks omitted). Therefore, an inquiry into
whether the application of a procedural rule is "firmly
established and regularly followed" in the specific circumstances
presented in a case includes "an evaluation of the asserted state
interest in applying the procedural rule in such circumstances."
New York's Criminal Procedure Law ("CPL") § 470.05, in its most
pertinent part, provides that:
* * *
For purposes of appeal, a question of law with
respect to a ruling or instruction of a criminal
court during a trial or proceeding is presented when
a protest thereto was registered, by the party
claiming error, at the time of such ruling or
instruction or at any subsequent time when the court
had an opportunity of effectively changing the same.
Such protest need not be in the form of an
"exception" but is sufficient if the party made his
position with respect to the ruling or instruction
known to the court. . . .
CPL § 470.05(2) (emphasis added). The purpose of the rule is "to
fairly apprise the court and the opposing party of the nature and
scope of the matter contested." People v. Jones, 81 A.D.2d 22,
41-42, 440 N.Y.S.2d 248, 261 (App. Div.2d Dep't 1981).
In New York, a general motion to dismiss an indictment, at the
close of the prosecution's case, without citation to any specific
evidentiary deficiencies, is inadequate to preserve, for appellate review, a claim that the evidence was legally
insufficient to support a criminal conviction. See People v.
Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 175 (1995) (citing
People v. Cona, 49 N.Y.2d 26, 33 n. 2, 424 N.Y.S.2d 146, 148 n.
2 ) (motion to dismiss for insufficient evidence must be
specifically directed to the alleged error); People v. Woodley,
178 A.D.2d 626, 578 N.Y.S.2d 851 (App. Div.2d Dep't 1991)
(motion to dismiss for failure of prosecution to prove prima
facie case not sufficiently specific); People v. Johnson,
185 A.D.2d 247, 586 N.Y.S.2d 136, 137 (App. Div.2d Dep't 1992)
(motion to dismiss for failure of prosecution to prove prima
facie case not sufficiently specific); People v. Neptune,
235 A.D.2d 502, 652 N.Y.S.2d 991 (App. Div.2d Dep't 1997) (motion to
dismiss for failure of prosecution to prove prima facie case not
sufficiently specific); People v. James, 254 A.D.2d 371,
678 N.Y.S.2d 731 (App. Div.2d Dep't 1998) (motion for trial order of
dismissal for failure of prosecution to prove prima facie case
not sufficiently specific); People v. Malloy, 262 A.D.2d 798,
799, 693 N.Y.S.2d 252, 253 (App. Div.3d Dep't 1999) (general
motion to dismiss not sufficiently specific to preserve claim of
legal insufficiency for appellate review).
In the case at bar, Williams' trial counsel made a general
motion for a trial order of dismissal at the close of the
prosecution's case, saying:
Judge for the record, I would like to make [a] motion
at the end of the People's case and at the end of the
entire case, that the People have failed to prove the
case beyond a reasonable doubt and there is not
sufficient  evidence [to] submit the case to the
jury and I ask for a trial order of dismissal at this
The court then invited Williams' trial counsel to elaborate on
the basis for his motion and counsel declined the invitation.
Now, petitioner contends that the basis for the motion was, and
remains, his contention that the prosecution failed to establish
that the robbery victim suffered substantial pain. However, as noted above, the physical injury
element of the charge of robbery in the second degree may be
established by showing that the robbery victim suffered either
substantial pain or an impairment of a physical condition. Since
Williams' trial counsel declined the invitation from the trial
court to elaborate on his general motion that the evidence
presented was insufficient to find Williams guilty for the crime
of robbery in the second degree, he failed to alert the trial
court with the requisite specificity, dictated by New York law,
that it was the substantial pain theory of the physical injury
element of the crime that Williams was challenging and not the
impairment of physical condition theory. Given that physical
injury has multiple meanings and that the jury heard
uncontroverted testimony from a physician that losing
consciousness from a choke hold means that the brain of the
person who has been choked has not received sufficient oxygen
and, furthermore, that in such a circumstance the brain senses
this, and causes the body's voluntary systems to shut down, the
trial court might reasonably have concluded that it was being
asked by the petitioner to assess the sufficiency of the evidence
with respect to either or both theories of physical injury.
Thus, it would not have been reasonable for the petitioner to
conclude that the court recognized that his general motion was
intended to have it assess only whether sufficient evidence was
presented on the issue of substantial pain, as he now claims.
Therefore, it was incumbent upon Williams and his trial counsel
to alert the trial court to the specific deficiency(ies) in the
evidence presented by the prosecution which warranted the court
in granting the motion for a trial order of dismissal so that an
appellate court would not be left to speculate on the basis for
which the motion for a trial order of dismissal was made. Based upon the New York cases cited above, and the relevant
provision of the CPL, the Court finds that the application of the
procedural rule relied upon by the Appellate Division, that in
order to preserve for appellate review a claim that a conviction
rests on legally insufficient evidence, a criminal defendant may
not make a general motion to dismiss the indictment at the close
of the prosecutor's case or at the close of all the evidence, but
must make a sufficiently specific motion that alerts the trial
court to the particular evidentiary deficiency(ies) in the
prosecution's case, is and, at the time of Williams' trial, was
firmly established and regularly followed.
The Court finds, further, that New York has a legitimate
interest in applying this procedural rule because it promotes the
efficient and effective administration of justice by ensuring
that an appellate court will neither have to speculate about the
error the defendant claims occurred during a criminal trial nor
parse the trial record in search of the alleged error to which
the defendant failed to direct the trial court's attention with
specificity. Therefore, the Appellate Division's decision to
apply the New York rule requiring specificity on a motion for a
trial order of dismissal premised on a claim of legally
insufficient evidence, rests on a state law that is independent
of Williams' federal claim and is an adequate basis upon which to
deny federal habeas corpus review unless the petitioner can show
cause for his procedural default in the state court and prejudice
attributable to his failure to make his motion with specificity
or that he is actually innocent. See Harris v. Reed, supra.
Here, the petitioner has not shown cause for his procedural
default and he does not allege that he is actually innocent.
Accordingly, he is not entitled to the habeas corpus relief he
seeks. IV. RECOMMENDATION
For the reasons set forth above, petitioner's application for a
writ of habeas corpus should be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report to file written objections. See
also Fed.R.Civ.P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable Harold Baer,
500 Pearl Street, Room 2230, New York, New York, 10007, and to
the chambers of the undersigned, 40 Foley Square, Room 540, New
York, New York, 10007. Any requests for an extension of time for
filing objections must be directed to Judge Baer. FAILURE TO FILE
OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF
OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v.
Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v.
Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson,
968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd.,
838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson,
714 F.2d 234, 237-38 (2d Cir. 1983).
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