The opinion of the court was delivered by: Spatt, District J.
MEMORANDUM OF DECISION AND ORDER
Antonio Bertolini (the "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.
On June 15, 1998, the Grand Jury of Nassau County indicted the petitioner and a co-defendant for (1) murder in the second degree based on a theory of depraved indifference; (2) manslaughter in the first degree; (3) criminal possession of a weapon in the second degree; and (4) criminal possession of a weapon in the third degree. The charges arose out of the shooting death of a man named Paul Behr.
The following basic facts were established at the trial. Behr was a master carpenter who owned a construction company with his brother Perry. Paul was also a volunteer firemen with the Syosset Fire Department. At the time of his death, Paul was living with Linda Coloccia at his residence in Syosset. Paul and Linda lived together for approximately four and one-half years, beginning in or about July 1993.
Linda Coloccia was married to Frank Coloccia for thirty years. In 1993, Linda moved out of the residence she shared with Frank to live with Paul Behr. Linda and Frank were not divorced at that time. Frank was aware that Linda was living with Paul, and made threats to her and Paul about their relationship. Linda and Frank's divorce was expected to become final sometime in 1997.
Frank Collocia is the petitioner's uncle. Because Frank was unhappy with the fact of Linda and Paul's relationship, he hired the petitioner to injure Behr. Frank Coloccio instructed the petitioner to "do permanent damage." To accomplish this task, the petitioner enlisted the help of an acquaintance, Christopher Rustici.
According to their plan, the petitioner would drive Rustici to Behr's house, and Rustici would assault Behr with a baseball bat previously hidden near the premises. The petitioner drove Rustici to Behr's house and parked nearby. The petitioner remained in the car, out of sight around the corner, as Rustici approached Behr's house. Rustici found Behr gardening on his front lawn.
Rather than harm Behr with a baseball bat, Rustici shot Behr in the back with a gun that he obtained from the petitioner. The petitioner and Rustici fled. Behr was discovered on his lawn by a thirteen-year-old neighbor, and died later that night at the hospital.
The petitioner and Rustici were severed for trial, with the petitioner being tried first. On September 30, 1999, the jury returned a verdict finding the petitioner guilty of second degree murder, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. The trial court entered a judgment of conviction on December 15, 1999, and on that date sentenced the petitioner to a period of incarceration of twenty-five years to life on the second degree murder count; a concurrent seven and one-half to fifteen years on the second degree weapons possession count; and a concurrent three and one-half to seven years on the third degree weapons possession count.
On July 22, 2002, the New York State Supreme Court, Appellate Division, Second Department, affirmed the conviction and sentence. People v. Bertolini, 296 A.D.2d 553, 754 N.Y.S.2d 695 (2d Dep't 2002). On appeal, the petitioner argued that
(1) the evidence at the trial did not support a conviction for depraved indifference murder; (2) the prosecution failed to prove his guilt beyond a reasonable doubt; and (3) his sentence was excessive. The Appellate Division ruled that: Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), 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 of murder in the second degree was not against the weight of the evidence (see CPL 470.15 ).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
Id. On December 6, 2002, the New York Court of Appeals denied leave to appeal. People v. Bertolini, 99 N.Y.2d 555, 784 N.E.2d 80, 754 N.Y.S.2d 207 (2002).
On December 16, 2003, the petitioner made a motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10 alleging that:
(1) he was denied the effective assistance of counsel based on his trial counsel's failure to introduce Rustici's written confession into evidence; and (2) that the Courts of New York State misapplied the homicide statutes to utilize depraved indifference murder to preempt the lesser homicide crime of manslaughter.
On June 18, 2004, the Honorable David P. Sullivan of the County Court, Nassau County, denied the Rule 440 motion. Judge Sullivan determined that Defendant's argument is wholly meritless because: 1) Rustici's statement was incredible; 2) even if believed, Rustici's statement would not have exculpated defendant; 3) Rustici's statement would have harmed defendant's case more than it could have helped; 4) defendant cannot demonstrate the absence of strategic or other legitimate explanations for the manner in which counsel conducted the defense; and 5) defendant cannot even demonstrate that Rustici's statement would have been admissible.
With regard to the petitioner's second argument, Judge Sullivan determined that the Rule 440 motion must be denied because the petitioner raised the issue of the distinction between depraved indifference murder and manslaughter before the Appellate Division, and that argument was rejected on the appeal. Thus, it was not a proper argument to raise in a Section 440 motion. On May 6, 2005, the Appellate Division, Second Department denied the petitioner's motion for leave to appeal the County Court's 440 decision.
On May 31, 2005, Bertolini filed this petition. The petitioner raises the following arguments in support of habeas corpus relief: (1) ineffective assistance of trial counsel; and (2) the Courts of New York State misapplied the homicide statutes to utilize depraved indifference murder to preempt ...