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Georgiou v. Ercole

January 6, 2009

CHRISTOS GEORGIOU, PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY; BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS; AND THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, RESPONDENTS.



The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge

SIFTON, Senior Judge.

MEMORANDUM OPINION AND ORDER

Petitioner Christos Georgiou was convicted on March 11, 2003, of one count of murder in the second degree (felony murder) in New York Supreme Court, Criminal Term, Queens County,*fn1 and is currently incarcerated in the Greenville correctional facility in Stormville, New York as a result of that conviction. Petitioner brings this petition for habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he received ineffective assistance of counsel at his trial. For the reasons stated below, petitioner's application is denied.

BACKGROUND

The following facts are taken from the parties' submissions, including the record of petitioner's state court proceedings.

On May 29, 1995, Yorkia Gens, a seventy-five year old woman, was robbed of her purse in Kew Gardens, Queens County. In the course of the commission of the robbery, Ms. Gens was knocked to the ground and sustained injuries to her head. Ms. Gens died as a result of internal bleeding on June 3, 1995. The autopsy report showed that she had suffered multiple blunt injuries, fractures, and bruises, and that these injuries were not sustained from a fall from a standing position.

David Chesney was arrested for these acts on June 6, 1995. He subsequently pled guilty to robbery in the first degree, as well as to charges pending against him in another case, and received an indeterminate prison sentence from nine and two-thirds to twenty-nine years. Sometime in late 1999 or early 2000, police officers visited Mr. Chesney in prison. Mr. Chesney agreed to testify against petitioner, whom he had named as his accomplice in the crime, in exchange for a favorable letter to his parole board.

Petitioner was arrested in October of 2000 in connection with the death of Ms. Gens. At the time of petitioner's arrest, the statute of limitations on all crimes other than murder had run. Petitioner was subsequently indicted on two counts of murder in the second degree: depraved indifference murder and felony murder.

Trial by jury commenced thereafter before the Honorable Evelyn Braun of the Supreme Court, Queens County. At trial, the jury heard three different versions of the purse-snatching incident. In the first, Mr. Chesney testified that on May 29, 1995, he was driving a white Volvo that petitioner had stolen from his neighbor, and that petitioner was sitting in the passenger side. Trial Transcript ("Tr.") at 1375-77. Mr. Chesney stated that he and petitioner needed money to buy drugs. Id. at 1381. When Mr. Chesney and petitioner saw Ms. Gens, Mr. Chesney stopped the car, and petitioner got out of the car and grabbed Ms. Gens' purse. Id. at 1376-79. Mr. Chesney testified that Ms. Gens held on to her purse tightly, but that petitioner continued to yank it until the strap broke, and Ms. Gens fell to the ground. Id. at 1380-81. Petitioner then allegedly took the purse, ran back to the car, and told Mr. Chesney, "Get out of here." Id. at 1381. Mr. Chesney drove away leaving Ms. Gens lying in the street. Id.

Michael Olmeda offered testimony corroborating Mr. Chesney's account of events. Mr. Olmeda was arrested in early June of 1995 for an unrelated purse snatching and agreed to plead guilty to third-degree robbery in satisfaction of all charges against him in exchange for testimony against petitioner. Mr. Olmeda testified that when he was arrested in June of 1995, he was brought to the 109th Precinct, where he saw petitioner, whom he knew. Mr. Olmeda further testified that he and petitioner had a conversation about an "old lady." Id. at 1148-49. Petitioner allegedly told Mr. Olmeda that petitioner "had done a robbery, and he had yanked the pocketbook from the old lady. The lady pulled back. She fell, hit her head and her head sounded like it cracked like a coconut hitting the ground." Id. at 1149. Mr. Olmeda further testified that petitioner told him that he had committed the robbery with an individual named "Dave," and that while petitioner was telling Mr. Olmeda about the incident, petitioner had a smirk on his face. Id. at 1149-50.

Petitioner gave a different account of the incident in a statement to the police made shortly after his arrest, according to a police detective who testified at trial. The detective testified that after several hours at the precinct, petitioner gave him an oral statement about the incident, which the detective reduced to writing. Id. 1230-33. The detective read the statement back to petitioner, who said it was accurate, but when the detective asked petitioner to sign the statement, petitioner refused. In the statement, petitioner admitted that he and "Dave [Chesney]" had "robbed an old white lady (small)." He further stated: "I was driving the Volvo stolen by me. . . . Dave got out of [the] car and tried grabbing her pocketbook, but she wouldn't let go. So Dave punched her many times, knocking her to the ground. Dave then kicked her, then got into the car. I drove off. . . . At no time I never got out of the car." Id. 1240-41; People's Exhibit 2A. Petitioner also told the detective that "robbing the old lady was the only one we did" and "we were looking for drug money." Tr. at 1228-29, 1235-36.

In addition, an emergency medical technician ("EMT") testified at trial to a statement the victim herself made minutes after the incident. After arriving on the scene, stabilizing Ms. Gens by holding her neck and head to prevent further injury, and transferring her to an ambulance, the EMT asked Ms. Gens what had happened. Id. 1076-79. Ms. Gens responded that as she was walking to her car, she was assaulted by two men who took her pocketbook and keys, but that she did not remember how she got onto the ground. Id. 1079-83.

During the trial, the court noted that the evidence of petitioner's statement to the police detective might warrant a charge on the affirmative defense to felony murder that petitioner could not foresee Mr. Chesney's attack. Id. at 1008. However, defense counsel stated that despite petitioner's statement to the police detective that he had "robbed an old white lady," the defense theory was that petitioner was "clueless" and did not even know that a purse snatching was going to take place. Id. at 1359-60. On this theory, petitioner would not have shared Mr. Chesney's intent to rob Ms. Gens. Id. at 1490. Defense counsel did not request a charge on the affirmative defense to felony murder, and no such charge was given to the jury.

At the conclusion of trial, on March 11, 2003, petitioner was convicted of both depraved indifference murder and felony murder. He was sentenced to two concurrent ...


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