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Parisi v. Burge

February 12, 2007

KEVIN PARISI, PETITIONER,
v.
JOHN BURGE, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On January 26, 1998, Petitioner was found guilty of one count of assault in the first degree and one count of assault in the second degree following a jury trial in Oneida County Court. On April 7, 1998, the court sentenced Petitioner as a second felony offender to a determinate term of five years imprisonment for assault in the second degree and a determinate term of twenty-five years imprisonment for assault in the first degree to run concurrently.*fn1

On December 4, 2002, Petitioner filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that (1) there was insufficient evidence presented at trial to support his conviction for first degree assault and (2) the sentence of twenty-five years' imprisonment for first degree assault is excessive and violates his Eighth Amendment right to be free from cruel and unusual punishment.

On October 26, 2005, Magistrate Judge Treece issued a Report-Recommendation and Order in which he recommended that this Court deny Petitioner's petition in its entirety. Currently before the Court are Magistrate Judge Treece's recommendations and Petitioner's objections thereto.

II. DISCUSSION

A. Standard of Review

The district court reviews de novo those portions of the magistrate judge's report-recommendation and order to which a party objects, see Singleton v. Caron, No. 9:03-CV-00455, 2006 WL 2023000, *1 (N.D.N.Y. July 18, 2006) (citations omitted), and for clear error those portions to which a party does not object, see Stokes v. Artus, No. 05 Civ. 1975, 2006 WL 1676437, *2 (S.D.N.Y. June 14, 2006) (citation omitted). With these standards in mind, the Court will review Magistrate Judge Treece's recommendations with respect to each of Petitioner's stated grounds for relief.

B. Petitioner's Fourteenth Amendment Due Process Claim

The Fourteenth Amendment's Due Process Clause protects a defendant in a criminal case against a conviction "without proo[f] [of] the elements of th[e] crime [with which he is charged] beyond a reasonable doubt." Fiore v. White, 531 U.S. 225, 228-29 (2001) (citations omitted). This sufficiency-of-evidence "inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Herrera v. Collins, 506 U.S. 390, 402 (1993). Therefore, a petitioner who claims that there was insufficient evidence to support his conviction is entitled to relief under § 2254 only if he can establish "that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979) (footnote omitted).

In addition, the habeas court must consider the evidence in the light most favorable to the prosecution and draw all reasonable inferences in its favor, see id. at 319, and must look to state law to determine the elements of the crime of which the petitioner was convicted, see id. at 324 n.16; Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (quotation omitted). Moreover, "'when reviewing the sufficiency of the evidence, [the court] "defers to the jury's assessment of witness credibility and the jury's resolution of conflicting testimony."'" Harris v. Allard, No. 01 Civ. 7191, 2002 WL 31780176, *2 (S.D.N.Y. Dec. 11, 2002) (quotation omitted).

Applying these legal principles to the facts of this case, Magistrate Judge Treece found that, "[c]onsidering the evidence in favor of the prosecution and deferring to the jury's assessment of the testimony at trial, Petitioner fail[ed] in his attempt to show insufficient evidence was presented at trial." See Report-Recommendation and Order at 7. Moreover, Magistrate Judge Treece concluded that Petitioner had "failed to show that the state court's decision was contrary to federal law established by the Supreme Court or that the determination was unreasonable in light of the evidence." See id. at 8. Therefore, Magistrate Judge Treece recommended that this Court deny Petitioner's application for a writ of habeas corpus on the ground that the evidence at trial was insufficient to support his conviction on the charge of assault in the first degree. See id.

Although Plaintiff concedes that he attacked his victim, Mr. Austin, he contends that he did not cause the serious physical injury that New York State Penal Law requires for a conviction of first degree assault and that, therefore, the Appellate Division erred when it determined that there was sufficient evidence at trial to convict him on this charge. See Petitioner's Objections at 3. Petitioner further asserts that both the Appellate Division and Magistrate Judge Treece overlooked the fact that, while he was fighting with Mr. Austin, an unknown assailant stabbed Mr. Austin twice in the back of the neck area. See id. at 1. Petitioner contends that it was the stabbing, and not the beating, that caused Mr. Austin to suffer the severe permanent injuries, which were the basis for the jury's finding that Petitioner was guilty of first degree assault. Finally, Petitioner contends that Magistrate Judge Treece overlooked the testimony of Mr. Austin's family, who stated that an unknown assailant stabbed Mr. Austin, and the testimony of Dr. Reilly, who testified that Mr. Austin suffered two stab wounds. See id. at 3.

Petitioner was convicted of assault in the first degree pursuant to New York Penal Law § 120.10(3), which provides, in pertinent part, that "[a] person is guilty of assault in the first degree when . . . [u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person[.]" N.Y. Penal Law § 120.10(3) (McKinney 2004). In reviewing Petitioner's conviction, the Appellate Division concluded that "a valid line of reasoning and permissible inferences" ...


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