The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
This is a petition for habeas corpus pursuant to 28 U.S.C. § 2254, brought by Robert Jones (the "petitioner"), who was convicted of two counts of assault in the first degree in violation of New York Penal Law § 120.10(3), following a jury trial held in New York State Supreme Court, Bronx County. Judgment was entered on July 13, 2004. The petitioner is currently serving a sentence of two determinate concurrent terms of fifteen years on each count in the Eastern New York Correctional Facility. The respondent is William D. Brown, Superintendent of the Eastern New York Correctional Facility.
The petitioner challenges his conviction on three grounds. First, he asserts that the People failed to prove the petitioner guilty of depraved indifference assault on Leon Burton. Second, the petitioner claims that the trial court erred when it allowed a jury to reach its verdict before it responded to two jury notes. Third, the petitioner argues that the trial court erred in sua sponte dismissing a prospective juror. For the reasons that follow, the petition for habeas corpus is denied.
The evidence at trial was sufficient to find the following. On August 30, 2001, at around 1:30 or 2:00 a.m., George Bennett, Leon Burton, Tommy Bennett, and Ted Tyson were gathered on the corner of 174th Street and Longfellow Avenue in the Bronx. (Tr. 3-4, 146, 425, 457, 564.) George Bennett was leaving town for a promotion he had received to assistant manager of an Applebee's restaurant in Virginia, and the young men had been having drinks to celebrate. (Tr. 3-4, 455, 457-58.) Two young women, Kellea Walters and Cherice, passed by and stopped to talk with the men. (Tr. 4, 146.) Some of the men began to make comments about the provocative nature of Cherice's clothing, which caused Kellea Walters to become angry. (Tr. 146-47.) Kellea Walters, who knew George Bennett, began to argue heatedly with him, cursing and yelling loudly at him and waving her hands in his face. (Tr. 5, 84, 90-91, 147.) George Bennett then threw his drink -- orange juice and Jamaican rum -- in Kellea Walters' face. (Tr. 5, 427.)
Irate, Kellea Walters threatened George Bennett that she was going to get her boyfriend, the petitioner, to "F" him up, and left the scene for her nearby home. (Tr. 5, 85-87, 90, 93- 95, 148-49, 203-09, 564-66.) At her house, she grabbed a gun allegedly belonging to the petitioner from underneath her bed, placed the gun in the waistband of her pants behind the small of her back, and beeped the petitioner. (Tr. 148-50, 893.) When the petitioner called her back, she told him about George Bennett and the drink and said she "was ready to go outside and do something real stupid." (Tr. 150, 893.) The petitioner told Kellea Walters to calm down and to stay in the house, but she instead returned to Longfellow Avenue. (Tr. 150, 893-94.)
Back at Longfellow Avenue, the petitioner, his cousin Keenan, and several other young men pulled up in cars just as George Bennett, Leon Burton, Tommy Bennett, and Ted Tyson were coming up the street. (Tr. 8, 150-52.) The men got out of the cars, and Kellea Walters pointed George Bennett out to the petitioner as the one who had thrown a drink in her face. (Tr. 151-52.) The petitioner approached George Bennett, and a heated argument ensued. (Tr. 8, 152, 629, 702, 704, 811-13.) Threats were made, and the two appeared poised for a fight. (Tr. 152-53, 432, 896.) Keenan said something to the effect of "all this over a bitch," and then "F--- this, we out." (Tr. 152, 577, 813, 897.) Keenan then began to walk away from where George Bennett and the petitioner were still standing. (Tr. 577, 614.)
George Bennett, the petitioner, and the other men on both sides also began to back off, and it appeared to witnesses as if a fight had been averted. (Tr. 434-35, 481, 483, 577-78, 614-15.) Kellea Walters, however, continued to yell at George Bennett, who then insulted her back. (Tr. 10, 435, 589-90, 897.) Finally, Kellea Walters shouted to the petitioner that "something's gotta be done." (Tr. 435.) The petitioner then reached behind Kellea Walters' back, grabbed the gun, and began firing shots down Longfellow Avenue. (Tr. 10-11, 437.) George Bennett and the others began running away. (Tr. 15, 153.) According to the testimony of the various witnesses, the petitioner fired between two and four shots, one of which hit George Bennett in the back of his knee. (Tr. 10, 14, 153-54, 438, 505-06, 578, 630, 814, 899.) Another bullet struck Leon Burton in his right shoulder. (Tr. 437-38.) Witnesses to the shooting testified that upon being hit, Leon Burton took a few steps, grabbed a pole, and crumpled face down on the street. (Tr. 154, 437, 485-86.) Leon Burton testified that he remembered hearing two shots and getting hit in the shoulder, and that he did not remember anything after that point. (Tr. 438-39, 485.) Kellea Walters testified that after Leon Burton fell to the ground, he did not appear to move. (Tr. 163-64.)
Then, without explanation, Keenan took the gun from the petitioner, walked over to where Leon Burton was lying on the street, and fired a number of shots into his prone body. (Tr. 154, 901.) One of the police officers who arrived at the scene after the shooting testified that he found Leon Burton laying face down. (Tr. 370.) Underneath Leon Burton's body, the officer found two shell casings and two bullets. (Tr. 374-75.) Witnesses to the shooting testified that Keenan shot Leon Burton between three and five times. (Tr. 154, 631, 814, 901.)
According to Dr. Verrier, the trauma surgeon who attended to Leon Burton, Burton suffered multiple gunshot wounds to his neck, his right arm, the area under his right shoulder, his left shoulder, the right side of his abdomen, the left side of his abdomen, and his left groin. (Tr. 494.) Dr. Verrier estimated that he had two bullets and nine holes in his body, although he could not tell which of the holes were entry or exit wounds. (Tr. 495, 538.) Dr. Verrier testified that it was the bullet that entered the right side of his abdomen and lodged itself inside Burton's second lumbar vertebra, located in his lower back, that caused Burton's paralysis. (Tr. 496-98, 529-30.) This bullet entered Burton's abdomen from the front, traveled back through his kidney, and then lodged inside his vertebra. (Tr. 531.) Dr. Verrier also testified that either the shot to the right side of his abdomen or the shot to the area below his right shoulder were the most likely causes of his initial collapse, though it was possible that any one of the wounds Burton sustained could have caused him to fall down. (Tr. 530-32, 538.)
Soon after the shooting, the police and ambulance arrived on the scene, and George Bennett and Leon Burton were taken to the hospital where both underwent surgery. George Bennett's wound in his knee cut off the blood supply to his foot and, at the time of the trial, resulted in decreased sensation in the lower half of his left leg, which caused him to develop ulcers in his left foot. (Tr. 17, 506-09.) Leon Burton spent six weeks at the hospital, two years at a nursing home, and at the time of the trial, was paralyzed and could not walk on his own. (Tr. 440-42.)
Kellea Walters turned herself into the police the next day, but the petitioner remained at large for seven months. He was arrested at a routine traffic stop and tried in Supreme Court, Bronx County. The jury acquitted the petitioner of two counts of attempted murder in the second degree, and two counts of assault in the first degree, but found him guilty on Count Three, depraved indifference assault in the first degree with respect to George Bennett, and on Count Eight, depraved indifference assault in the first degree with respect to Leon Burton. (Tr. at 1412-14.)
The petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, in June 2005. In addition to the three arguments raised in this habeas petition, the petitioner asserted that the imposition of a DNA databank fee under the state statute violated the Ex Post Facto Clause of the United States Constitution because the petitioner committed the crime prior to the effective date of the legislation. In an opinion dated January 12, 2006, the Appellate Division unanimously agreed that the DNA databank fee should not have been imposed, but affirmed the decision of the trial court with respect to the remaining arguments. People v. Jones, 806 N.Y.S.2d 416 (App. Div. 2006).
In letters dated February 2, 15, and 27, 2006, the petitioner sought leave to appeal the Appellate Division's decision to the New York Court of Appeals. (Resp.'s Exs. 5-8.) On March 27, 2006, the petitioner's application was denied. People v. Jones, 847 N.E.2d 380 (N.Y. 2006). The petitioner did not seek a writ of certiorari from the ...