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Rustici v. Philips

August 3, 2007


The opinion of the court was delivered by: Spatt, District J.


Christopher Rustici ("Rustici" or the "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court regrets that this habeas petition, which was filed in 2004, is only being determined at this time. However, the resolution of this matter was delayed, in part, by the petitioner's counsel, who has submitted almost two hundred pages of briefing, including six supplemental briefs.

The Court notes that most recent supplement brief was filed on March 15, 2007. For the reasons that follow, the petition is denied.


A. Procedural History

The petitioner seeks to vacate a January 26, 2000 judgment of conviction and February 29, 2000 sentence, which were entered after a jury convicted him of one count of Murder in the Second Degree based on a theory of depraved indifference; one count of Criminal Possession of a Weapon in the Second Degree; and one count of Criminal Possession of a Weapon in the Third Degree. The charges arose out of the shooting death of Paul Behr ("Behr") in 1997. At his trial in state court, the petitioner admitted shooting Behr, but claimed that the gun discharged accidentally.

On February 29, 2000, the Honorable Donald E. Belfi of the County Court for the County of Nassau sentenced the petitioner to a term of imprisonment of twenty-five years to life under the murder count; seven and one-half to fifteen years under the second degree weapon possession count, to run concurrent to the murder count; and three and one-half to seven years under the third degree weapon possession count, to run consecutively to the other counts. The New York Supreme Court, Appellate Division, Second Department, affirmed the conviction, People v. Rustici, 303 A.D.2d 606, 756 N.Y.S.2d 498 (2d Dep't 2003), and the New York Court of Appeals denied leave to appeal, People v. Rustici, 100 N.Y.2d 586, 796 N.E.2d 489, 764 N.Y.S.2d 397 (2003). Also, on September 21, 2001, Judge Belfi denied the petitioner's motion to vacate his judgment of conviction pursuant to Section 440 of New York's Criminal Procedure Law.

On July 7, 2004, Rustici filed this petition, raising eight arguments in support of habeas corpus relief:

Ground One: The Petitioner suffers from a severe personality disorder-Dependent Personality Disorder, which prevented him from understanding the nature and consequences of his actions at the time of the incident. However, because petitioner was unable to offer psychological expert testimony, petitioner received an unfair trial. If the expert testimony was allowed, the jurors would have found petitioner not guilty.

Ground Two: The Petitioner's statements to law enforcement were not made knowingly, voluntarily and intelligently. Due to his severe personality disorder, the Petitioner would have admitted to anything. He was compliant and looking for approval and acceptance from any father or authoritarian figure. The Petitioner was therefore deprived of his right to remain silent in violation of the Fifth Amendment of the United States Constitution.

Ground Three: The presentation of this psychological evidence at trial would enable petitioner to be found not guilty by reason of insanity or guilty of a lesser charge due to extreme emotional disturbance and diminished capacity or to be found not guilty.

Ground Four: The Petitioner's C.P.L. § 440 Motion to vacate his judgment of conviction and ordering a new trial based upon the aforementioned newly discovered evidence [of a severe personality disorder] should have been granted. The trial court erred in not ordering an evidentiary hearing on the basis of the new evidence submitted to support it in support of petitioner's 440 motion.

Ground Five: The Petitioner received an illegal consecutive sentence. The Court could have imposed a sentence of 15 years to life but instead imposed a maximum sentence thusly [punishing] the Petitioner for exercising his right to go to trial. The Petitioner had been offered in plea bargains a determinate sentence of 12 years on a manslaughter first degree plea.

Ground Six: The Court erred in not charging the jury on accident or mistake of fact. Again, this coupled with the Petitioner's psychological diagnosis would have caused the Petitioner to either be acquitted or convicted of a lesser charge. The Court also confused the jury on its charging instructions by the preclusion of the lesser included offenses and failing to into account the law in People v. Sanchez, 98 N.Y.2d 373 and Jones v. Keane, 82 Civ. 1804 (CLB). Both cases were decided after the Rustici trial but both addressed the conflated and confusing nature of the homicide law in New York which have recently undergone some changes in jury instructions in light of the New York Court of Appeals decision last year in People v. Hafeez, [100 N.Y.2d 253, 792 N.E.2d 1060] (2003).

Ground Seven: The prosecution committed gross misconduct in disregarding motions in limine.

Ground Eight: New York's Statutory distinction between reckless manslaughter and depraved indifference murder, as interpreted by the New York Court of Appeals violates the rights to Due Process and Equal Protection. The U.S. Court of Appeal for the Second Circuit in St. Helen v. Senkowski, Docket No. 03-2777 is currently considering whether the standard used to distinguish between reckless manslaughter and depraved indifference murder is violative of a defendant's Due Process and Equal Protection rights under the Constitution of the United States and the Constitution of the State of New York. . . . (Petition, dated July 7, 2004.)

In addition to these grounds that are specifically enumerated in the petition, the petitioner also raises several additional grounds for relief in the text of his memoranda submitted in support of his petition. These grounds are that

(1) there was insufficient evidence introduced at trial to support the petitioner's conviction of Second Degree Murder on a theory of depraved indifference; and

(2) the trial judge improperly limited the defense's cross-examination of a witness in violation of the Confrontation Clause of the Sixth Amendment the Constitution.

B. Facts

Testimony at the petitioner's trial established that on August 22, 1997, at approximately 5:00 p.m., a thirteen year old boy named Ralph Mandarino was in his house in Syosset when he and a friend heard a "loud noise" from outside. It sounded "[l]ike a car backfiring, or a firecracker." Mandarino and his friend rode their bikes around the block and discovered a neighbor, Paul Behr, lying on his front lawn, on his back, in pain and bleeding. Behr was asking for help. The Nassau County Police were called, and Behr was taken to a hospital where he died from a single gunshot wound. On November 13, 1997, Christopher Rustici was taken into custody in connection with the Behr shooting. The petitioner confessed to shooting Behr, but claimed that the gun discharged accidentally. (Tr. at 56.)*fn1

1. The Trial Testimony of Christopher Rustici

At his trial, the petitioner testified that he was twenty-three years old in August, 1997. The petitioner was raised in Huntington, New York and spent most of his life there. In or about January, 1997 the petitioner "went to Florida to do some work" and to help a friend move into a new house. The petitioner stayed in Florida for approximately five months working in a "detailing shop" where he cleaned cars. (Tr. at 300-01, 305-07.) He then returned to New York.

At some point during the summer of 1997, the petitioner was introduced to a man named Antonio Bertolini. The petitioner and Bertolini became social acquaintances, sometimes going "jet-skiing" together. In or about the end of the month of July in 1997, Bertolini approached the petitioner asking if he would help "beat a guy up" who owed a friend money. The petitioner agreed, although he didn't "think it was serious." (Tr. at 308-11.)

On August 22, 1997, Bertolini picked the petitioner up at his house. As the two drove off, the petitioner did not know where they were going. At some point, Bertolini showed the petitioner a picture of a white male. Bertolini identified the person in the picture only as someone who owed a friend money. The petitioner had never seen this person before, and Bertolini did not tell the petitioner the man's name. (Tr. at 315-17.)

Bertolini drove the petitioner to the victim Behr's neighborhood in Syosset, New York, and identified Behr's house. Bertolini realized that Behr was not at home, so the two went to a pizza restaurant in the neighborhood. After eating pizza, the two returned to Bertolini's car and left the parking lot. As they were leaving the parking lot of the pizzeria, Bertolini pulled a white towel or T-shirt from under the seat, and placed it on the seat of the car. The petitioner asked what the towel or shirt was, and Bertolini revealed that it was wrapped around a revolver. Bertolini commented that "this would be easier . . . than beating him up." (Tr. at 317-21.)

Bertolini drove the petitioner back to Behr's neighborhood. This time, as they drove past Behr's house, Bertolini said that Behr was home. Bertolini drove around the corner, said to the petitioner that he would wait there, and told the petitioner "to go do it." The petitioner took the gun, put it in his pocket, and left the car. The petitioner testified that at that point, "[t]here was no way I was going to shoot him. I didn't have a plan." He got out of the car with the gun because Bertolini kept telling him to get out of the car, to "go do it." The petitioner just wanted to get away from Bertolini. (Tr. at 322, 325-26.)

After leaving the car, the petitioner walked past Behr's house, and then back in the direction of Bertiolini's car. As the petitioner walked back to the car, Bertolini drove past him, pointing in the other direction saying "He's there. He's there. Go, go." The petitioner looked and saw a man standing on his front lawn. The petitioner could not see the man's face. At that point, the petitioner "was scared," and he didn't want to do it. However, the petitioner did not return to the car because he did not want Bertolini to think that he was "a wimp or anything." The petitioner was "trying to be tough guy." (Tr. at 326-28.)

The petitioner testified that at first, he "stood by [a] bush thinking of how [he] could get [himself] out of this." He thought that maybe he could just scare Behr. The petitioner crossed the street and walked toward Behr's house. As he approached Behr's house, he was "in a slow jog." As he jogged, the petitioner held the gun at his side, pointed at the ground. When the petitioner reached the plaintiff's driveway, he "slipped." The petitioner attributes his fall to "gravel" or "loose stones." When he slipped, his arms "went out to break [his] fall," and the gun fired. (Tr. at 329, 335.)

After the gun discharged, the petitioner saw Behr grab his right side, in the area of his right kidney. The petitioner ran back to Bertolini's car and jumped in through the passenger window, the gun still in his hand. The petitioner told Bertolini to take him home. There was no conversation along the way, nor was there any conversation when the petitioner got out of the car. At approximately 6:30 or 7:00 that evening, Bertolini called the petitioner and told him that Behr was dead. The petitioner testified that he became sick to his stomach, vomited, and sat in the bathroom crying. (Tr. at 336-338, 340.)

At a later date, approximately one week after the shooting, the petitioner spoke with a man named Artie Givargidze ("Givargidze"), who told the petitioner that Bertolini "told him everything." The petitioner responded that "it was an accident." One week after that conversation, the petitioner again spoke with Givargidze about the shooting. According to the petitioner, Givargidze approached him and asked how it happened. The petitioner "just said, -- um: Yeah, the guy looked at me, so I shot him." But this was not the truth. (Tr. at 345.) The petitioner was again "[t]rying to be a tough guy." (Tr. at 342-45.)

Later during his testimony, the petitioner testified that when he got out of the car in Syosset his intention was to scare Behr. He had no intention of firing the gun in Behr's direction when the weapon discharged. (Tr. at 349.)

On cross-examination, the petitioner admitted that he told Detective Martin Alger of the Nassau County Police ("Detective Alger") that he went to Behr's house to "beat him up"; that he was going to do it with a bat; that Bertolini said that he should break Behr's knees; that Bertolini offered him $2,000 to carry out the assault; and that he knew Bertolini carried a bat in his car because he had seen it previously. (Tr. at 353-66.) The petitioner also admitted that as he approached Behr's house his finger was on the trigger of the gun; the gun was loaded; and that he pulled the trigger.

Q: And when you walked, or approached Mr. Behr's house, when you got to the bush you said that you decided then you were going to scare him?

A: Yes.

Q: And then you took the gun out of your pocket?

A: As I was walking towards the house.

Q: All right [sic], and put your finger on the trigger?

A: Yes, put my finger on the trigger.

Q: So, and you said before that the gun discharged, you fired the gun?

A: Yes.

Q: It didn't discharge by itself; did it?

A: No. (Tr. at 366-67.)

Upon further cross-examination, the petitioner testified that as he approached the house, Behr was kneeling on the grass, picking weeds. After the gun fired, the petitioner did not attempt to render aid to Behr; he did not know whether Behr was alive or dead; and that he did not tell anyone else since the shooting that he only intended to scare Behr. (Tr. at 372, 374-78.)

The petitioner also testified about his arrest, interrogation, and the statements that he made to the police and the District Attorney's office. On November 13, 1997, the petitioner was taken into custody. The petitioner remained silent while handcuffed and being transported to the police station. At the police station, he was held in an interrogation room for "twenty minutes, maybe longer" before he "broke down" because he "was upset" and "scared." (Tr. at 347-48.)

During the police interrogation, the petitioner told the interviewing detective that the shooting was an accident. In response to cross-examination, the petitioner testified that he recognized the rights card that Detective Alger used to advise him of his Miranda warnings when it was presented to him. The Miranda rights were given to him prior to questioning, and he told the detective that he understood those rights and that he was willing to answer questions without an attorney present. The petitioner testified that he gave a written statement to Detective Alger, and that he gave the statement voluntarily. The petitioner was with Detective Alger for approximately twenty minutes before he began telling him what happened regarding the shooting. The police did not "have him in there for hours on end before he began telling them about what happened." He told Detective Alger the truth. He also voluntarily gave a videotaped statement to an Assistant District Attorney. (Tr. at 349-50, 358-59.)

2. The Trial Testimony of Arturo Givargidze

Givargidze was an acquaintance of the petitioner. The two had met in March of 1997, and would see each other frequently when, among other times, the petitioner would visit Givargidze's Carvel ice-cream store as a customer. Givargidze and the petitioner had a conversation about the Behr shooting.

Q: And what if anything did you say to [the petitioner], and what if anything did [the petitioner] say in response to you?

A: I asked him why he would get involved with a shooting.

Q: And what did he say?

A: He told me that he shot the guy, and went on to describe how it took place.

Q: All right [sic], can you tell the jurors what it was he told you transpired.

A: He told me that Anthony Bertolini took him up to this house in Syosset. They drove around the house a couple of times. And Anthony Bertolini showed him the house, parked on the corner.

He got out of the car, walked up to the house. And as he was walking up there, he had a baseball cap on, and he put it over his eyes. As he was walking up there, the guy was doing gardening work.

As he was ten feet away from him, and about to jump him, the guy turned around and saw his face. He shot him. And then he ran back to the car where Bertolini was waiting on the corner. (Tr. at 146-50.)

3. The Trial Testimony of Detective Martin Alger

On the morning of November 13, 1997, Detective Alger was assisting another detective, Detective Joseph Volpe, with a homicide investigation. Detective Alger met the petitioner at approximately 9:25 a.m. that morning, in an interview room at Nassau County Police headquarters in Mineola, New York. At that time, the petitioner was handcuffed to a wooden chair. (Tr. at 216-18.)

Detective Alger entered the interview room with Detective Volpe and uncuffed the petitioner. Detective Alger questioned the petitioner about his background and what he did for a living. Detective Alger indicated to the petitioner that he would like to ask him questions about an incident involving a shooting in Syosset, but that he would first read to him his Miranda rights. Detective Alger read from a form called "PDCN Form 233," which contained the Miranda warning. The petitioner confirmed that he understood his rights as they were read to him, and stated that he was willing to talk and answer questions without a lawyer present. (Tr. at 218, 220-23.)

A: . . . I asked him: Chris, do you understand what I just read to you?

And he said: Yes.

I said: Now that you understand, are you willing to answer questions before talking with a lawyer or having one present? And his response to me again was: Yes, but I don't know if I can help you. But yeah, I'll talk to you.

(Tr. at 223.) Detective Alger then showed the Form 233 to the petitioner for him to review, and the petitioner wrote "yes" on the form next to where it asked whether the suspect understood his rights and was willing to answer questions without a lawyer. The petitioner also signed the form. (Tr. at 224.)

Detective Alger told the petitioner that they had obtained statements about the Behr shooting from Bertolini and Givargidze, and Bertolini told the police that the petitioner "pulled the trigger on it," and that he wanted to know "exactly what [the petitioner] did on it." Detective Alger emphasized his remarks to the petitioner by pointing his finger at him. After being confronted with this information, the petitioner began to cry. (Tr. at 229-30.)

The petitioner then confessed to the shooting by telling Detective Alger that it was an accident.

A: I said: An accident?

He says: It was an accident, he says, I was jogging up towards him, and he says and as I got near or close to him, he says, I tripped, and he says, and the gun went off. And he says, and he grabbed his side. And he says it was an accident. He says, you got to understand, he says, it wasn't supposed to happen like that. He wasn't supposed to die. (Tr. at 231-32.)

The petitioner then provided additional factual details for Detectives Alger and Volpe. Detective Alger testified:

A: He says: I went -- there was a bush by the corner on the street corner, he said. Bertolini had left, and there is a bush there, and he says I'm standing behind the bush, and I'm thinking to myself: How an I going to do this? And he says: I'm thinking. And he says: And then I just took off and I started off in a walk, fast walk, into a trot, into a jog. And he says: I'm coming there near him. He says: He is on the front lawn, bent over, with his back towards me. He is bent over working on the lawn, doing something on the lawn.

And he says: As I'm running towards him now, and I get up near the driveway, he says, and I'm coming towards him, right now I put my hand in my pocket. And as I'm running, I'm taking the gun out. And I now have the gun in my right hand, and my finger is on the, in the trigger part, on the trigger.

And as I'm nearing him, he says, at that point he says, I trip. I asked him, on what?

And he said: I don't know, I think I slipped on gravel, or I tripped, or whatever.

And what happened?

And he says: Well as I tripped, my arm went forward. And he said the gun fired. And he said: And I heard the guy moan, or make a sound. And he said: He grabbed his side. And I realized that I had, I had hit him.

I queried him more on what he had tripped on, and whatever. He said: I don't know, I just slipped on something. I think I tripped on the gravel, and my arm went forward.

Your finger was on the trigger?

Yeah, it was on the trigger.

And then again, like I said, he says: But you know, it wasn't supposed to happen like that. It wasn't supposed to happen like that, you know, a foot or a leg. But he says: it wasn't supposed to happen like that. (Tr. at 239-40.) Detective Alger also testified that the petitioner told him that he spoke to Givargidze about the shooting, but that his statements to Givargidze were only "bragging." (Tr. at 243.)

The petitioner first told Detective Alger about his involvement in the shooting "not long" after he and Detective Volpe went into the interview room. Detective Alger estimated that he was with the petitioner for approximately forty-five minutes before he confessed. The Detectives continued the interrogation until approximately one o'clock in the afternoon, at which point they took a break. The petitioner was given a sandwich, drinks, and cigarettes. After the lunch break, the petitioner agreed to provide the detectives with a written statement. (Tr. at 245, 249-51.)

The petitioner provided and signed an eight-page handwritten statement, which was admitted into evidence and read to the jury at trial. In his statement, the petitioner stated that before he got out Bertolini's car, Bertolini showed him the gun and commented that "this would be easier than beating the guy with a bat." (Tr. at 252-59.)

I said, what the f*** am I supposed to do with this? And he said, quote, put a shot in his leg, foot, you know, that area, unquote.

He handed me the gun and told me to go. I asked what he wanted me to do, and he said, knock on the door and shoot him in the doorway. (Tr. at 256, 257.) The petitioner began writing his statement at approximately 1:35 p.m. and completed it at approximately 3:05 p.m. Detective Alger then took the petitioner to the Nassau County District Attorney's office, where he provided a videotaped statement. (Tr. at 261-63.)

On cross-examination, Detective Alger reiterated that the petitioner said that his statements about the shooting to Givargidze were only bragging, and were not truthful. (Tr. at 272.)

C. State Court Review

Represented by new counsel, the petitioner appealed his conviction and sentence to the Appellate Division, Second Department. On April 23, 2001, which was after the petitioner filed his Notice of Appeal but before any appellate brief was filed, he made a motion before Judge Belfi for an order vacating the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10.

In his Section 440 motion, the petitioner sought to have the court set aside and vacate his conviction; order a new trial; order that a psychological evaluation of the petitioner be done concerning the disposition of not responsible by reason of insanity; or dismiss the charges against him. The petitioner's Section 440 motion was based on purportedly new evidence "not previously available."

According to the petitioner's appellate counsel Thomas F. Liotti, Esq., it was he, and only he, who was sufficiently alert to the petitioner's characteristics of having a "flat affect" and his being "excessively courteous and extremely deferential" to authority figures. Struck by these traits of the petitioner, and in conjunction with conversations with the petitioner's family and his review of the trial record, petitioner's appellate counsel retained the services of a forensic psychologist named Dr. Leah Blumberg Lapidus. According to the Section 440 motion, Dr. Lapidus met with and tested the petitioner, and diagnosed him with "Dependent Personality Disorder." According to the petitioner's appellate counsel, "Dependent Personality Disorder" is a mental disease or defect that rendered the petitioner unable to understand or appreciate the nature or consequences of his actions at the time of their occurrence.

Appellate counsel for the petitioner argued that, through no fault of the petitioner's able trial counsel, the petitioner's mental defect remained unnoticed during the trial. According to the petitioner's appellate counsel, had this information been available to the defense during trial, the petitioner would have been acquitted of all the charges against him, or at least the information could have been presented in the nature of a mitigation defense and led to a result more favorable to him. "If a jury had heard testimony from Dr. Lapidus, then I believe they would have more readily understood the actions of Christopher Rustici as lacking in intent." Among the exhibits annexed to the Section 440 motion is a report from Dr. Lapidus concluding that the petitioner suffers from Dependent Personality Disorder.

On September 21, 2001, Judge Belfi denied the petitioner's Section 440 motion. Judge Belfi wrote, in part:

The defendant agues that he has newly discovered evidence, to wit: that the defendant suffered from a diminished capacity or even an extreme emotional disturbance at the time of the crimes that only his appellate attorney could recognize.

The defendant has not submitted any sworn allegations substantiating or tending to substantiate that even with due diligence on his part, he could not have produced at a trial the psychologist's findings concerning his personality disorder. C.P.L. Sec. 440.10(1)(g). Therefore the defendant has not met his burden and his motion is denied.

In fact the arguments and affidavits submitted to this Court belie any argument that with due diligence this evidence could not have been produced at trial. If the defendant's appellate attorney could detect this disorder immediately upon meeting his client as he submits to this Court in his Affirmation, then clearly this evidence could have been produced at trial. . . . There is not one scintilla of sworn fact submitted to this Court that this diminished capacity defense was not realized or could not have been realized at the time of trial with due diligence, notwithstanding Mr. Liotti's claim that only he could recognize this disorder in his client.

Even if the Court felt that this so called personality disorder was in fact newly discovered evidence as discussed infra this evidence would not have resulted in a more favorable verdict for the defendant. C.P.L. Sec. 440.10(1)(g). The People's evidence was overwhelming.

Petitioner's Br., Ex. C (Sept. 21, 2001 Order of Hon. Donald E. Belfi).

On October 24, 2001, the petitioner made a motion for leave to appeal the denial of his Section 440 motion. On December 12, 2001, the Appellate Division, Second Department, granted this request. Because his appeal from his judgment of conviction and sentence had not yet been perfected, the petitioner filed a joint-brief covering both appeals with permission from the Appellate Division.

In his consolidated appeal, the petitioner raised the following seven arguments: (1) he suffered from a severe dependent personality disorder which prevented him from understanding the nature and consequences of his actions at the time of the incident and that this evidence should have been presented to the trier of fact; (2) his statements to law enforcement and the District Attorney were made involuntarily; (3) the presentation of this psychological evidence at trial would have enabled the defendant to be found not guilty by reason of insanity or guilty of a lesser charge due to extreme emotional disturbance or diminished capacity or to be found not guilty; (4) the trial court erred in not granting his Section 440 motion; (5) he was given an illegal consecutive sentence for possession of a weapon; (6) the court erred in not charging the jury on mistake of fact; and (7) the court erred in allowing the prosecution to ask questions regarding the petitioner threatening his sister and also that the deceased was a volunteer fireman.

On March 17, 2003, the Appellate Division unanimously affirmed the petitioner's judgment of conviction and Judge Belfi's order denying the Section 440 motion. The Appellate Division wrote:

The defendant's contention that the evidence was legally insufficient is unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt of murder in the second degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt on the charge of murder in the second degree was not against the weight of the evidence.

The defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction was properly denied. The defendant failed to meet his burden of demonstrating that the evidence submitted on the motion could not have been produced at the trial with due diligence or that the evidence was such that it would probably change the result if a new trial were granted.

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

People v. Rustici, 303 A.D.2d 606, 756 N.Y.S.2d 498 (2d Dep't 2003). On March 31, 2003, the petitioner made a request for leave to appeal to the Court of Appeals. On July 10, 2003, the Court of Appeals denied this request. People v. Rustici, 100 N.Y.2d 586, 796 N.E.2d 489, 764 N.Y.S.2d 397 (2003).


A. Standards of Review

The Antiterrorism and Effective Death Penalty Act (the "AEDPA") provides that a federal habeas court may grant habeas relief to state prisoners with respect to any claim that was adjudicated on the merits in state ...

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