REPORT AND RECOMMENDATION
Julio Almonte, currently an inmate at Arthur Kill Correctional Facility, brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. Following a jury trial in New York State Supreme Court, New York County, Almonte was convicted of one count of Assault in the First Degree (N.Y. Penal Law ("N.Y.P.L.") § 120.10(1)) and sentenced to a prison term of six years. For the reasons stated below, Almonte's petition should be denied.
A. Evidence Presented at Trial
1. The Prosecution's Case
On March 10, 2001, Almonte was at a bar called El Sueno Two when he and Andres Pena got into a fight over the daughter of the owners of the bar, Jadira. (Andres: Tr. 4, 6; Alexis: Tr. 113; Almonte: Tr. 329-30).*fn1 Andres -- who, along with another individual whose last name is Pena, will be referred to herein by his first name -- was "very drunk," and did not remember many specific details about that night, see Andres: Tr. 6, 10, 28, 36, but he did remember telling Almonte, "Old man, I don't want to fight with you." (Andres: Tr. 4). Concerned employees called Alexis Pena, the security guard and manager of the nearby companion restaurant, El Sueno One, to break up the altercation. (Alexis: Tr. 134-35).
When Alexis arrived, he saw the two men fighting and punching each other and he separated them. (Alexis: Tr. 112-13, 135). Almonte then pulled a knife from his pocket, opened it, and attempted to stab Andres in the back. (Alexis: Tr. 113-14). Alexis caught Almonte's arm before he could stab Andres, and he took the knife away from Almonte. (Alexis: Tr. 114, 142). Alexis searched Andres for weapons, but found none. (Alexis: Tr. 124, 210). Alexis told one of the owners of El Sueno Two what happened, and the owner asked Alexis to stay at the restaurant to make sure the situation remained under control. See Alexis: Tr. 115.
Andres decided to leave, and told Alexis that he was going home. (Andres: Tr. 31; Alexis: 116, 139). Instead, Andres walked the short distance to El Sueno One. (Andres: Tr. 31). About fifteen to twenty minutes after Andres left, the owner of El Sueno Two asked Almonte to leave and told Alexis to return the knife to Almonte. (Alexis: Tr. 116, 136-37). Alexis escorted Almonte outside and gave him the knife. (Alexis: Tr. 116, 138).
Louis Natal, a disc jockey, was working that night at El Sueno One from a raised platform near the bathrooms. (Natal: Tr. 43-44, 49). There were fewer than 15 people in the bar when Natal suddenly heard an argument break out. (Natal: Tr. 46, 60, 75). He turned off the music and left the DJ booth to go to a nearby platform in order to see what was going on. (Natal: Tr. 46, 61). Before the fight, it had been dark inside the bar, but someone turned the lights on after the two men started fighting. (Natal: Tr. 46). Natal did not see any of the fighting that occurred before the lights were turned on, did not pay attention to the noise in the background, and could not hear clearly what was going on. (Natal: Tr. 73-74, 103). Once the lights were turned on and the music was turned off, however, Natal was able to watch and listen to the fight from his spot on the platform three feet away. (Natal: Tr. 49, 64). Natal was the closest person to the two men fighting. (Natal: Tr. 100).
Natal saw that the two men fighting were Almonte and Andres, neither of whom he knew. See Natal: Tr. 46-47, 49. Natal watched as Almonte rushed at Andres two or three times, and each time Andres pushed Almonte away from him. (Natal: Tr. 47, 62-63, 90-91). When Andres was pushing Almonte away from him, Andres was not in a "fighting stance." (Natal: Tr. 89-90). Natal heard Almonte say, "why you did that to me, why you did this to me?" (Natal: Tr. 47). Then Almonte rushed at Andres again. (Natal: Tr. 62-63, 90). But when Andres pushed Almonte away this time, Natal saw Almonte pull a knife out of Andres's side. (Natal: Tr. 47, 51; see also Andres: Tr. 8). Natal did not actually see the blade go inside Andres's body. (Natal: Tr. 51, 63, 90). Natal testified that he saw Andres walk towards a door and say, "look, he stabbed me, he stabbed me." (Natal: Tr. 47). Then, Almonte picked up a chair and threw it at Andres, who threw a chair back at Almonte. (Natal: Tr. 47-48, 65, 82, 94-96). Natal saw the two throw chairs only after the stabbing, and did not see any chairs on the ground when he first saw the two of them fighting. (Natal: Tr. 50, 66). Natal never saw anything in Andres's hands. (Natal: Tr. 50, 66-67). After he saw the two start throwing chairs at each other, Natal and the other patrons in that area of the bar ran outside, and Natal used his cellular phone to call the police. (Natal: Tr. 65, 75, 97). Natal did not witness the end of the altercation. (Natal: Tr. 81, 83). From outside the restaurant, Natal saw Almonte leave the restaurant. (Natal: Tr. 83). After Almonte left, Andres was sitting inside the restaurant. (Natal: Tr. 83). Natal spoke to Andres, who was not lucid and "was in and out." (Natal: Tr. 84).
Back at El Sueno Two, Alexis got a phone call about the stabbing at El Sueno One. (Alexis: Tr. 116-17). He left the restaurant and was walking to El Sueno One when he encountered Almonte on the street. (Alexis: Tr. 117). Almonte had a bloody knife in his hand. (Alexis: Tr. 117-18). Alexis told Almonte to drop the knife, but Almonte refused and repeatedly tried to stab Alexis. (Alexis: Tr. 117-18, 120, 129-30, 184, 213-16). Officers Anthony Alvarez, Isaac NgMontalvo, and Sergeant Thomas LaTorre arrived, and they saw Almonte "waving," i.e., "swinging" or "sweeping," the knife at Alexis, "attempting to stab or cut him," and Alexis was "evading" the knife. (Alexis: Tr. 119; see Alvarez: Tr. 231-32, 234-36, 278, 280; see also LaTorre: Tr. 299-301). After the police officers identified themselves, Almonte dropped the knife and put his hands up. (Alvarez: Tr. 232-33; 237-38; LaTorre: Tr. 303-04). The police recovered Almonte's bloody knife, identified as a "gravity knife," and arrested Almonte. (Alvarez: Tr. 237, 240; LaTorre: Tr. 304-05). Almonte was handcuffed and blurted out that Alexis was "a drug dealer, they are all bad, they all need to be killed." (Alvarez: Tr. 240, 266).
Almonte was taken to the precinct and placed inside a cell with several other prisoners. Officer Alvarez sat at a nearby desk and processed the arrest. (Alvarez: Tr. 246, 248-49). While the officer was working, he heard Almonte talking in Spanish to the other men in the cell. (Alvarez: Tr. 249-50). Almonte told the men that he had been arrested for stabbing Andres and said, "if he dies he dies." (Alvarez: Tr. 250, 264, 284-85).
Dr. Sitaram Pillarisetty, an expert in medicine and surgery, was Andres's attending physician in the emergency room at Harlem Hospital on March 11, 2001. (Pillarisetty: Tr. 350-52). Andres was admitted to the hospital with "a stab wound of the left chest, which is located posteriorly, that is the back of the chest and the upper chest." (Pillarisetty: Tr. 353). The wound was approximately one inch wide, and located on his side underneath his arm. (Pillarisetty: Tr. 361; Tr. 10). The "presumptive ending" was inside his "thoracic cavity" because there was "evidence of bleeding into the chest." (Pillarisetty: Tr. 353-54). An x-ray of Andres's chest showed blood and air inside his chest cavity, and a nurse recorded that he had a "hemopneumothorax." (Pillarisetty: Tr. 353-54, 365). A hemothorax is bleeding into the chest cavity, and a pneumothorax refers to air in the chest cavity. (Pillarisetty: Tr. 362). The air could have come in through the stab wound, or it could have come from a resulting pierced lung. (Pillarisetty: Tr. 355). Doctors also inserted a chest tube inside Andres's chest cavity to evacuate the blood and air. (Pillarisetty: Tr. 354). "Quite a bit" of blood -- 400 cubic centimeters -- was removed from Andres's chest. (Pillarisetty: Tr. 355). A follow-up x-ray after the insertion of the chest tube later indicated, "lung well expanded, no pneumothorax, minimum residual hemothorax." (Pillarisetty: Tr. 364-65).
Andres stayed in the hospital for three days and was discharged after the removal of his chest tube on March 14, 2001. (Pillarisetty: Tr. 356, 361, 366). Andres was scheduled to have a follow-up appointment on March 20, but he returned to the hospital on March 18 complaining of back pain. (Pillarisetty: Tr. 366-67). He was found to have fluid in his chest, but his lungs were clear, and he was given Tylenol with codeine. (Pillarisetty: Tr. 356, 361). Andres returned to the hospital again on April 11 and doctors observed a contusion on his chest wall. (Pillarisetty: Tr. 369-70).
Dr. Pillarisetty testified that the long-term consequences of the injury could include a lung that could not expand adequately, pain in the chest from weather or humidity, and tightness on the external scar where the stab injury was created. (Pillarisetty: Tr. 356-59). At trial, almost six months after the injury, Andres testified that the wound still caused him pain. (Andres: Tr. 11). Without the course of treatment performed by Dr. Pillarisetty, "somebody" with Andres's injury could "bleed continuously into the chest cavity and presumably die" from the wound. (Pillarisetty: Tr. 355-56, 373). Once the injury is treated, the mortality rate decreases to five percent. (Pillarisetty: Tr. 372).
Almonte was the only witness to testify for the defense. His testimony was as follows: Almonte, a native of the Dominican Republic, was 53 years old, 5'4" tall, and 152 pounds at the time of trial. (Almonte: Tr. 326, 328). He could speak some English but not much. (Almonte: Tr. 346). He was a regular customer at El Sueno One and Two. (Almonte: Tr. 328-29, 375).
On March 10, 2001, Almonte went to El Sueno Two at around 11:30 p.m. (Almonte: Tr. 329). He talked to the daughter of the restaurants' owners while sitting down at the bar. (Almonte: Tr. 329-30, 377). Andres was at the other end of the bar, and he started insulting Almonte. (Almonte: Tr. 330, 377). Andres, a big man, was drunk and seemed to be very violent. (Almonte: Tr. 331). He appeared jealous about Jadira, and kept saying that Almonte was too old for her. (Almonte: Tr. 330, 378). Wellington, a man who was sitting at Almonte's side, told him not to pay attention to Andres because he was a drug dealer and could hurt Almonte. (Almonte: Tr. 330, 378).
Andres got up and went towards Almonte from the back. (Almonte: Tr. 331). He hit Almonte on the back and said, "Old man, be quiet, . . . I am going to blow you up." (Almonte: Tr. 331, 382). Almonte understood this to mean that Andres would kill him. (Almonte: Tr. 331). Andres then placed himself in back of Jadira and hugged her. (Almonte: Tr. 331-32, 380). Andres started sneering at Almonte and making fun of him. (Almonte: Tr. 332, 380). Almonte told him, "You have to respect me. I am not a kid." (Almonte: Tr. 332, 387). Andres became violent and tried to rush Almonte. (Almonte: Tr. 332).
Almonte took out a "penknife," which was the same knife he used at his shipping job where he had worked that day. (Almonte: Tr. 332, 376). Almonte believed that Andres had a weapon. (Almonte: Tr. 333, 383). Almonte did not see a weapon on him but Andres had his coat on. (Almonte: Tr. 383). Alexis grabbed Almonte and told Almonte to give him the knife. (Almonte: Tr. 333, 388-89). The owner of the restaurant and other people held onto Andres. (Almonte: Tr. 333, 388-89). Almonte's knife was closed at that point. (Almonte: Tr. 333, 384). Almonte sat back down and Andres went back to his place. (Almonte: Tr. 334). Andres started provoking Almonte again after a few minutes. (Almonte: Tr. 334). The owner and a security person escorted Andres out. (Almonte: Tr. 334, 393).
Almonte left about twenty minutes later. (Almonte: Tr. 334, 397). Alexis and the owner returned Almonte's knife. (Almonte: Tr. 340-41, 397). Once he reached the subway station while heading home, Almonte realized he had to use the bathroom and so he stopped by El Sueno One because he was familiar with that bathroom. (Almonte: Tr. 336, 405-06). He proceeded directly to the bathroom and encountered Andres about four feet in front of him. (Almonte: Tr. 339, 463). Andres looked at him and "went ballistic." (Almonte: Tr. 339).
Andres "seemed so big and strong" to Almonte that he was "terrified" and thought Andres might have had a weapon. (Almonte: Tr. 339). Almonte did not expect to see Andres at the restaurant. (Almonte: Tr. 339).
Andres picked up a chair from the dining area and swung it at Almonte. (Almonte: Tr. 339, 409). Almonte moved backwards and was not hit. (Almonte: Tr. 339). Almonte also picked up a chair from the dining area and threw it at Andres. (Almonte: Tr. 339). Andres took a steel folding chair from the corner and came at Almonte with it in order to hit him. (Almonte: Tr. 340, 411-12). Almonte testified that he thought he was about to die and had to defend himself. (Almonte: Tr. 340). He took out his pen knife and "took a swipe" at Andres when he got close to him. (Almonte: Tr. 340, 412). Almonte hit Andres under the arm as he was holding the chair to hit Almonte. (Almonte: Tr. 340, 412). Almonte only thought about defending himself and did not try to kill Andres. (Almonte: Tr. 383). Andres did not have a gun, but Almonte viewed the chair as a weapon. (Almonte: Tr. 386). Andres did not actually hit Almonte with the chair because Almonte did not allow him to. (Almonte: Tr. 414).
After he was stabbed, Andres went toward the side of the bar. (Almonte: Tr. 342). Almonte went towards the door. (Almonte: Tr. 342). Andres was still throwing chairs. (Almonte: Tr. 343). Almonte saw blood coming out of his body and said, "you are hurt, . . . instead of throwing chairs around have someone call an ambulance for you." (Almonte: Tr. 343). Andres was ...