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April 19, 2005.

JOSE YAPOR, Petitioner,

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


To the Honorable Richard C. Casey, United States District Judge:

Pro se petitioner Jose Yapor seeks a writ of habeas corpus from his March 19, 1999 conviction of first degree manslaughter, second degree criminal possession of a weapon and first degree reckless endangerment and sentence to concurrent terms of which the longest was twelve and one half to twenty-five years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4.)

  Yapor's habeas petition raises the same six grounds that he had raised on appeal before the First Department: (1) he was denied a fair trial when the court allowed a character witness to be cross-examined without a good faith basis about Yapor's termination from a job because of a violent temper (Pet. Attach.: Yapor 1st Dep't Br. at 15-19); (2) he was denied his right to due process and a fair trial when the court admitted evidence that his wife had been arrested for a drug crime (id. at 19-21); (3) he was denied a fair trial when the court allowed the prosecution to introduce evidence that Yapor possessed a gun during a prior altercation involving the decedent (id. at 22-25); (4) he was denied his right to a jury verdict because of erroneous jury instructions on extreme emotional disturbance and justification (i.e., self-defense) (id. at 26-31); (5) he was denied effective assistance of trial counsel at sentencing (id. at 32-34) and; (6) his sentence to the maximum term was excessive and should be reduced (id. at 35-40).

  For the reasons set forth below, Yapor's habeas petition should be DENIED.


  Pre-Trial Hearings

  On February 9, 1999, at a preliminary hearing, the trial court ruled on two motions in limine. (Dkt. No. 9: 2/9/99 Transcript 16-21, 22-33.) First, it ruled that the prosecution could introduce evidence at trial that there was a fight between Yapor and the decedent two months before the charged shooting to show motive, but that the prosecution could not bring out that Yapor took out a gun during the incident because it would be unduly prejudicial. (Id. at 23-28.) Second, the court ruled that the prosecution could introduce evidence that Yapor's wife was arrested for drug possession to show she was not arrested by the police as a ploy to "smoke [Yapor] out unfairly" since he had fled to Florida after the shooting. (Id. at 32.) The prosecution, however, could not introduce evidence of where the drugs came from, i.e., they could not try to show that the drugs found in their apartment belonged to Yapor. (Id. at 32-33.)

  At a hearing on February 10, 1999 the court sua sponte changed its ruling on the admissibility of the fact that Yapor had a gun at the previous altercation (Dkt. No. 9: 2/10/99 Transcript 38-39), ruling that because the presence of the gun went to the question of whether there was an extreme emotional disturbance and to Yapor's intent, it was admissible (id. at 40-41). Defense counsel excepted. (Id. at 41.)

  The Prosecution's Case at Trial

  In 1997, Jose Yapor worked as the cashier at the Inwood Pool Hall on West 206th Street and 10th Avenue in Manhattan. (Dkt. No. 10: Cabreja: Trial Transcript ["Tr."] 166, 169-70; Landestoy: Tr. 333, 336-39.) Welcar "Hueca" Dominguez, the decedent, and his friends hung out at the pool hall often from 1994 through 1997. (Cabreja: Tr. 166-68; Martinez: Tr. 243-45; Cuevas: Tr. 458-59; Landestoy: Tr. 339-44.)

  The First Altercation Involving Yapor and Dominguez

  In February 1997, Dominguez and his friend Juan Cabreja were hanging out in front of the pool hall's entrance when the owner, Geromino "Andy" Landestoy, came out and yelled at them to get away from the doorway. (Cabreja: Tr. 174-75, 179, 221; Landestoy: Tr. 332-33, 343-44.) When Cabreja yelled back, Landestoy signaled to Yapor to come out from inside the pool hall. (Cabreja: Tr. 180-81; Landestoy: Tr. 345-46.) A verbal argument ensued and Cabreja began physically fighting with Yapor. (Cabreja: Tr. 181; Landestoy: Tr. 346-47.) Dominguez tried to join in the fight, to hit Yapor, but Landestoy held Dominguez back. (Cabreja: Tr. 182; Landestoy: Tr. 346-47.) Landestoy and Yapor went back inside the pool hall, and Landestoy held the door closed from the inside to prevent anyone from entering. (Landestoy: Tr. 348.) Another friend of Cabreja's who was inside the pool hall punched Yapor. (Cabreja: Tr. 183, 228.) After that friend left the pool hall, Yapor took out a gun from behind the counter and held the gun above his head. (Cabreja: Tr. 183-87.) Other people in the pool hall held Yapor back. (Cabreja: Tr. 187-88.) Landestoy again went out and asked Dominguez and Cabreja to leave, which they did. (Cabreja: Tr. 188, 229-30.)

  After that incident, Dominguez and his friends began hanging out outside the grocery store across the street from the pool hall. (Cabreja: Tr. 190-91.) Between February and April, Dominguez would come by the pool hall and stare at Landestoy and Yapor. (Landestoy: Tr. 351-52.)

  The Shooting

  On April 20, 1997 at approximately eleven p.m., Dominguez and five friends were hanging out in front of the grocery store across the street from the pool hall, drinking and playing dice. (Cabreja: Tr. 192, 195; Landestoy: Tr. 354-55.) Landestoy and another worker came out of the pool hall to talk to Dominguez. (Martinez: Tr. 252; Pena: Tr. 418-20; Landestoy: Tr. 355; Cuevas: Tr. 467; Liranzo: Tr. 540.) Landestoy told Dominguez to stop coming into the pool hall because he was making Yapor nervous and that Yapor thought Dominguez and his friends were "going to do something to him," and Landestoy talked to Dominguez about a recent incident where Dominguez slammed down the phone in front of Yapor. (Landestoy: Tr. 356; Martinez: Tr. 252-54; Cuevas: Tr. 468.)

  Soon thereafter, Yapor came out and Dominguez and he started arguing. (Martinez: Tr. 254; Pena: Tr. 421; Landestoy: Tr. 356-57; Cuevas: Tr. 469.) Yapor said that Dominguez caused trouble in the pool hall and would stare at him, and that Dominguez should leave him alone. (Martinez: Tr. 254-56, 264, 268-69; Landestoy: Tr. 357-58, 366-67; Cuevas: Tr. 470.) Dominguez said that it was not true and he was grinning. (Landestoy: Tr. 358; Cuevas: Tr. 471, 488.) They also argued about the incident when Dominguez slammed the phone down in front of Yapor. (Martinez: Tr. 255; Cuevas: Tr. 470-72; Landestoy: Tr. 358, 366-67; Martinez: Tr. 269.)

  Yapor turned and started walking away toward the pool hall. (Martinez: Tr. 270; Landestoy: Tr. 358, 367, 372-73; Pena: Tr. 440; Cuevas: Tr. 474.) Carlos Cuevas, one of Dominguez's friends and an eyewitness, testified that as Yapor started walking away, Yapor said: "Keep messing with me, you are going to see what's going to happen." (Cuevas: Tr. 474-75.) Yapor had taken several steps when Dominguez yelled out in Spanish: "eat shit." (Martinez: Tr. 270, 275; Landestoy: Tr. 374; Pena: Tr. 422; Cuevas: Tr. 475, 490; Liranzo: Tr. 544, 549.)*fn1 Yapor still had his back to Dominguez. (Martinez: Tr. 276; Landestoy: Tr. 374; Pena: Tr. 424, 435; Cuevas: Tr. 477.) Once Dominguez said "eat shit," Yapor turned toward him, pulled out a gun from his waistband and started shooting at Dominguez. (Martinez: Tr. 277, 311-13; Landestoy: Tr. 359-60, 375, 377, 396; Pena: Tr. 423-25; Cuevas: Tr. 477-78.) Dominguez's hands were still open and down when Yapor began shooting. (Pena: Tr. 427; Martinez: Tr. 314.)*fn2 The witnesses testified that Yapor fired between four and ten shots. (Cabreja: Tr. 198; Martinez: Tr. 282; Landestoy: Tr. 360, 377-78; Cuevas: Tr. 480; Pena: Tr. 429; Liranzo: Tr. 545.) Yapor shot Dominguez six times — once in the head, twice in the abdomen, and three times in the thighs — resulting in his death. (Hayes: Tr. 593, 595, 606.) Carlos Cuevas also was shot in the hand. (Cuevas: Tr. 481-85.)

  Elvis Martinez, another of Dominguez's friends and an eyewitness, testified that when Yapor began shooting, "[i]t wasn't him anymore. It was somebody else. I see his face when he was killing my man." (Martinez: Tr. 277-78.) Yapor looked "like he was going crazy." (Martinez: Tr. 278, 283.)

  After the shooting, Yapor ran away from the scene still holding the gun. (Landestoy: Tr. 379; Martinez: Tr. 278, 283; Pena: Tr. 430.) Cabreja chased after him but did not catch him. (Cabreja: Tr. 193, 200-01; Landestoy: Tr. 379.)

  Dominguez's friends carried Dominguez across the street, and the police arrived followed by an ambulance which took Dominguez to a hospital. (Martinez: Tr. 285-86, 292-93; Landestoy: Tr. 380; Pena: Tr. 431.)

  Having fled the scene, Yapor went to a friend's apartment and asked to borrow $100, which his friend's wife, Milagros Rivera Hernandez, gave him (his friend was not home). (Hernandez: Tr. 506.) Yapor appeared calm but in somewhat of a hurry. (Hernandez: Tr. 506-07.)

  The Defense's Questions About Yapor's "Reputation for Peacefulness" and the Prosecution's Redirect

  On cross-examination of Milagros Rivera Hernandez, defense counsel asked "did you ever hear that [Yapor] had a bad reputation for peaceableness?" (Hernandez: Tr. 519.) Hernandez answered that she had never heard that. (Hernandez: Tr. 510, 519.) On re-direct, the court permitted the prosecutor to ask whether Hernandez had "heard that the defendant, before he worked in the pool hall used to work at the Sheraton Hotel and that he was fired from the hotel because he was violent." (Hernandez: Tr. 520.)*fn3 Hernandez answered "no." (Hernandez: Tr. 520.) The court allowed the prosecution to inquire into this specific incident because it went toward the witness's credibility as a character witness, and the court immediately instructed the jury accordingly:
Members of the jury, on this testimony, I want to instruct you as follows as to what the law is. With regard to what [the prosecutor] just asked this witness, it is not to show, and you may not consider that it shows the truth of that alleged incident at the hotel, but only to show this witnesses' [sic] ability to accurately reflect the defendant's reputation.
(Hernandez: Tr. 520.)

  Evidence of Mrs. Yapor's Arrest and Yapor's Subsequent Surrender

  Detective Ramirez testified that on April 23, 1997, Yapor's wife was arrested for criminal possession of a controlled substance. (Ramirez: Tr. 499-500.) The judge immediately instructed the jury that "under no circumstances may the testimony as to the charge against the wife be considered as evidence of guilt of the defendant of any of the charges in this case." (Tr. 500.) The judge added that "the charges against the wife do not exist with regard to this defendant." (Tr. 500.)

  On April 24, 1997, Yapor turned himself in to the police in Orlando Florida. (Sayer: Tr. 551-53.) Yapor approached Officer Sayer on the street in Orlando and told him that he had killed someone in New York City four days earlier. (Sayer: Tr. 553-54.) Yapor told Officer Sayer who he had shot and where it had occurred. (Sayer: Tr. 554; Pearson: Tr. 570-71.) Yapor also told Officer Sayer that the police in New York had his wife in custody for the murder and that he was tired of running and wanted to turn himself in. (Sayer: Tr. 554.) Officer Sayer testified that Yapor seemed calm, "[m]aybe a little bit remorseful," and "possibly mentally ill." (Sayer: Tr. 555, 561-62.)

  On April 29, 1997, New York detectives picked Yapor up in Florida and brought him back to New York. (Lungaro: Tr. 74.)

  The Defense Case at Trial: Yapor's Testimony

  Yapor testified on his own behalf at trial. (Yapor: Tr. 621-704.) Yapor testified about the first incident involving Dominguez in October 1996 (although other witnesses had put it in February 1997, see page 3 above). (Yapor: Tr. 624-26, 648.) During the scuffle, Yapor held up a gun, not pointing it at anyone, because the group of Dominguez's friends had gotten larger and they were trying to get in to the pool hall to hit him. (Yapor: Tr. 626-27, 649-50.)

  Several months later, in the early morning hours of April 20, 1997, Dominguez came into the pool hall and according to Yapor:
[Dominguez] went to the register. He stood for one moment looking at me, stayed there about almost a minute. I got nervous but I stood still and he kept looking at me and I turned around when he looked at me. He had a weapon and he said, I am going to kill you. Then he turned around. He picked up the phone and he slammed it down hard, boom, and he left. (Yapor: Tr. 628; see also id. at 636-37.)*fn4 Yapor told Landestoy about this incident and threat, and told Landestoy that if it continued, he was not going to continue working at the pool hall. (Yapor: Tr. 635.) Yapor did not tell Landestoy that Dominguez had a gun. (Yapor: Tr. 637-38.)
  That night, while Yapor was working at the register, he saw Landestoy and another former worker talking to Dominguez across the street. (Yapor: Tr. 627.) Yapor took it as an opportunity to speak to Dominguez about what had transpired earlier. (Yapor: Tr. 628.) Yapor had a gun in his pocket, the same gun as in the prior incident. (Yapor: Tr. 631-32, 644.) When Yapor joined the men on the street, he brought up how Dominguez would come into the pool hall and stare at him and that when Dominquez gets drunk or is on drugs he bothers Yapor. (Yapor: Tr. 639.)*fn5

  Before Yapor turned to walk away he said to Dominguez: "It's okay, let's leave it like that." (Yapor: Tr. 656, 658-59.) Yapor did not say "don't mess with me or you'll see what will happen." (Yapor: Tr. 656.) As Yapor began to walk away, he was thinking he would leave the job. (Yapor: Tr. 628-30.) Yapor had gone some fifteen feet, not several (Yapor: Tr. 659-64) when Dominguez said to Yapor that he was a "shit head." (Yapor: Tr. 629, 655.) At this, Yapor turned his head and looked over his shoulder (Yapor: Tr. 666) and he saw Dominguez

made like a movement with his hand and he said another word. . . . When I turned around and I saw that he like moved his hand, I totally lost — I thought he was going to shoot me, if he hadn't called to me, I would have continued back to the pool hall, but I got very nervous because of the argument we had. I got very nervous, but if he hadn't called to me when I was leaving, none of this would have happened.
(Yapor: Tr. 629-30.) Once Yapor saw what he thought was Dominguez reaching for a gun, Yapor shot Dominguez. (Yapor: Tr. 630, 671, 673.) Yapor testified that he killed Dominguez because he thought Dominguez was going to kill him. (Yapor: Tr. 633.)
  Yapor testified that he does not know why he brought the gun with him, and that he asks himself that very question, and also that he did not know why he ran from the scene, he just did it. (Yapor: Tr. 630, 644, 691-92.) When asked by the prosecutor to explain what he meant when he testified that he lost control (Yapor: Tr. 686) when he shot Dominguez, Yapor explained:
It's like if a demon came and it got into me. I felt like a demon was in me because I saw like the nose, my nose was trembling after I did that, like the dogs and I said, what is happening to me, oh my God, what have I done. I couldn't believe how things had happened.
(Yapor: Tr. 688-89.)

  Events After the Shooting

  After Yapor had fled the scene and borrowed money from Milagros Rivera Hernandez, he called another friend who picked him up and took him to her house in New Jersey where he stayed overnight. (Yapor: Tr. 693-96.) Yapor wanted to turn himself in to the police but he was scared to do it, so he stayed another day in New Jersey and then took a bus to Orlando, where he has some family. (Yapor: Tr. 696-97.) When Yapor got to Florida he called his brother-in-law who told him that Yapor's wife had been arrested. (Yapor: Tr. 699.) Yapor gave himself up in Orlando after he heard that his wife had been arrested. (Yapor: Tr. 700.) Yapor's Attempt to Enter Evidence That He Had Not Been Fired For Violence

  On re-direct examination, defense counsel sought to introduce a letter written by someone at the agency which sent Yapor to work at the Sheraton Hotel. (Tr. 705.) The judge excluded the letter as hearsay and also because the court had already instructed the jury to consider the question asked about the reason for Yapor's termination from his job at the Sheraton not for its truth but rather as part of character evidence. (Tr. 706.) Defense counsel wanted to ask Yapor if he had heard that other people had said he had been fired for a violent temper, but the court did not allow that question. (Tr. 707.) The judge offered to repeat the limiting instruction it ...

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