The opinion of the court was delivered by: James K. Singleton, Jr. Senior United States District Judge
MEMORANDUM-DECISION AND ORDER
Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 1997 judgment of conviction entered in the County Court of Schenectady County on one count of murder in the second degree, one count of assault in the first degree, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. He seeks relief on the grounds that: (I) there was insufficient evidence to support the jury's verdict on the murder charge; (II) there was insufficient evidence to support the jury's verdict on the controlled substance offenses; (III) the causation jury instruction was erroneous; (IV) the trial court erred by not instructing the jury that assault was a lesser included crime; and (V) the trial court erred by admitting the autopsy and "before" photographs of the decedent. Docket No. 1. The Government has filed a Response disputing all of Petitioner's grounds for relief. Docket Nos. 7 (Response); 8 (Mem.). As Petitioner's application is untimely it shall be dismissed.
The Appellate Division, on direct review, succinctly summarized this case and denied on the merits most of the claims raised in the instant petition:
Defendant's convictions result from his having sold $10 worth of crack cocaine, on credit, to the victim. When defendant confronted the victim for payment, an argument ensued and defendant, using a sawed-off shotgun, at point-blank range, shot the victim in the face. At the hospital, the victim's family asked for a "Do Not Resuscitate" order and elected to forego the use of antibiotics. The victim died 13 days later from bronchopneumonia. At trial, the medical examiner testified for the prosecution that the victim's wounds were so extensive that they never could have been closed, infection was inevitable and, therefore, the shotgun blast to her face caused her death. Defendant's expert pathologist testified that, had the victim received proper antibiotic therapy, she "well might be alive today," although she would be scarred and disfigured. His expressed opinion was that the action of the victim's family was a supervening cause which broke the chain of causation between the shotgun blast and the victim's death. Defendant, after guilty verdicts were returned, was sentenced to 25 years to life for the intentional murder conviction, 7 1/2 to 15 years for the assault conviction, to run concurrently with the murder sentence, and 12 1/2 to 25 years for each of the drug convictions, as a second felony offender. County Court directed that each drug sentence run consecutive to the murder and assault sentences.
On appeal, defendant makes three related arguments addressed to the cause of death issue. He asserts that the murder verdict is not supported by legally sufficient evidence, that it is against the weight of the evidence and that County Court's charge on this issue was erroneous.
To prove defendant guilty of murder in the second degree, the People must establish beyond a reasonable doubt that defendant's conduct caused the death of the victim (see Penal Law § 125.00; People v Stewart, 40 NY2d 692, 697 ). A person causes the death of another when his or her conduct forges a link in a chain of events which brings about the death of another person. The intervention of a secondary agency constitutes a defense to the charge only if the death is solely attributable to the secondary agency (see People v Stewart, supra at 697). In other words, to break the chain of events sufficiently to preclude the requisite causation for murder, the evidence must conclusively establish that the death was in no way attributable to defendant's conduct (see People v Kane, 213 NY 260 ).
On this record, we cannot conclude that death was solely attributable to the victim's decision to forego medical treatment for infection (see People v Griffin, 80 NY2d 723, 727 ), or that it was in no way attributable to defendant's conduct. We thus conclude that the jury's determination is supported by legally sufficient evidence and is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 ; People v Jefferson, 248 AD2d 815, 817 , lv denied 92 NY2d 926 ). Moreover, County Court's jury charge tracked, nearly word for word, relevant case law and we find it to be entirely proper.
Next, defendant asserts that admission of autopsy photographs and one photograph depicting the victim's appearance before being shot was so prejudicial as to deprive him of a fair trial. However, the most significant issue during trial was the cause of death and the photographs are relevant and probative on that issue (see People v Stevens, 76 NY2d 833, 835 ). As a result, we discern no abuse of County Court's discretion in admitting such photographic evidence (see People v Mastropietro, 232 AD2d 725, 726 , lv denied 89 NY2d 1038 ).
We also conclude that legally sufficient evidence supports the jury's determination that defendant did indeed possess and sell a controlled substance. Although the testimony regarding the actual drug transaction comes from defendant's accomplice, other evidence presented by the People sufficiently corroborates the testimony of the accomplice to support the conviction (see CPL 60.22 ; People v Lawrence, 1 AD3d 625, 626-627 , lv denied 1 NY3d 630 ). Defendant's former girlfriend testified that she was present when defendant, the victim and the accomplice conversed concerning the drug transaction. Although not actually proving guilt (see People v Hudson, 51 NY2d 233, 238 ), her testimony sufficiently links defendant to the commission of the crimes charged and is adequate corroboration of the accomplice testimony (see People v Breland, 83 NY2d 286, 294 ).
People v. Hicks, 20 A.D.3d 695, 695-97 (N.Y. App. Div. 3d Dep't 2005). The court modified Petitioner's sentence for the controlled substance offenses for reasons unrelated to this petition and affirmed. Id. at 697. Petitioner was denied leave to appeal to the New York Court of Appeals on September 13, 2005. See Docket No. 9, Attach. 11.
Petitioner next filed a motion for a writ of error coram nobis dated December 7, 2006, in the Appellate Division. Docket No. 9, Attach. 12. Petitioner alleged that his appellate counsel was ineffective because he failed to argue that: (1) the trial court erred when it did not charge the jury with first-degree assault as an alternative to the second-degree murder); and (2) trial counsel was ineffective because trial counsel consented to the submission of the first-degree assault charge but not as an alternative or lesser included offense of second-degree murder. Id. The Appellate Division denied the motion without comment on February 7, 2007. Id., Attach. 15. The Court of Appeals denied Petitioner leave to appeal on May 11, 2007. Id., Attach. 18.
Petitioner's instant federal petition, filed June 11, 2007, was dated May 30, 2007. Docket No. 1. Respondent filed a response, arguing that the petition is untimely, three of the claims are unexhausted and procedurally ...