The opinion of the court was delivered by: Gershon, United States District Judge
Moshe Canty, a prisoner incarcerated as a result of a conviction in the New York State Supreme Court, Kings County, through counsel, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that he is in custody in violation of the Constitution of the United States, and raises a single ground for relief: that the evidence presented at trial was insufficient to support a conviction for attempted second-degree murder because it did not establish his intent to commit murder.
Taken in the light most favorable to the prosecution, the evidence presented at petitioner's trial established the following facts.*fn1 On September 22, 1998, Canty and a co-defendant, Ali Malik, twice entered a small grocery store on Linden Boulevard in Brooklyn, New York. The store was under constant video surveillance. The first time, the men's faces were unobscured, and Canty said hello to the store's owner, Gamal Alsaidi. The men knew each other by name, since Alsaidi had owned the grocery store for some time and had seen Canty around the neighborhood and sold items to Canty in the past. Canty and Malik, whom Alsaidi also recognized, left the store after about ten seconds. They returned minutes later, this time with baseball caps on their heads, bandana-like cloth covering their faces, and each brandishing a silver .44 caliber revolver. Canty and Malik demanded that Alsaidi and the others present in the store-including Alsaidi's cousin Nasser Saif and Alsaidi's girlfriend Lydia Sierra-raise their hands and give Canty and Malik money. Alsaidi hesitated and Canty struck him on the head with his gun, after which Alsaidi raised his hands, as did Saif. After taking $20 from Saif's pocket, Malik shoved Alsaidi down one of the grocery aisles, continuing to demand money at gunpoint. While Malik was with Alsaidi, Canty stood guard by the front door. At that time, Canty offered Sierra the opportunity to leave the store, which she refused.
Alsaidi and Malik continued to tussle in the aisle until Alsaidi pulled Malik's mask from his face. Malik then shoved Alsaidi to the floor and shot him in the abdomen.*fn2 After the shot was fired, Malik and Canty together fled from the store. Canty was arrested in Baltimore, Maryland, on October 6, 1998. At the time of his arrest, police recovered a silver revolver.
Several witnesses-each interviewed by Detectives Joseph Quinn, Thomas O'Donnell, or Thomas Whelan-identified both Canty and Malik as the perpetrators of the robbery. Alsaidi's girlfriend, Lydia Sierra, who had been present in the store, stated that she knew Canty from the neighborhood-though not by name-and she identified Malik in a computerized photo array the evening of the robbery. Five days later, Alsaidi, still hospitalized, identified Malik as the person who had shot Alsaidi, in the same computerized photo array. On October 3, 1998, Alsaidi identified Canty, also by photo array, as one of the robbers. Lydia Sierra identified Canty, who had recently been arrested, in a lineup at the 75th Precinct on October 8, 1998. When Malik was arrested, he too was identified in a lineup by Alsaidi, Sierra, and Alsaidi's cousin Nasser Saif.
Canty and Malik were each charged with, inter alia, attempted murder in the second degree, N.Y. Penal Law §§ 110.00, 125.25; robbery in the first degree, N.Y. Penal Law § 160.15; and criminal possession of a weapon the second degree. N.Y. Penal Law § 265.03. Before trial, Justice Lewis Douglass of the Supreme Court, Kings County, held a hearing to consider Malik's and Canty's motions to suppress the various out of court identification procedures and the grocery store's surveillance videos from the day and time of the robbery. Defendants' motions to suppress were denied, as was Malik's motion for severance.
At the two-week trial, Alsaidi, Saif, and Sierra all testified. The witnesses consistently identified Malik as the person who shot Alsaidi. Detectives Quinn, O'Donnell, and Whelan testified about his investigation and the pre- and post-arrest identification procedures.*fn3 Canty did not testify. His mother, Janice Canty, testified that at the time of the robbery she was with her son at the home of Ms. Canty's mother. Malik's mother and former girlfriend also testified.
At the conclusion of testimony, Canty's counsel moved to dismiss the attempted murder charge against Canty, based on the State's alleged "failure to make out a prima facie case." (Tr. 715.) Counsel argued that, even if the State had shown that Canty was present at the scene of the robbery, it had not offered sufficient proof that Canty had the specific intent required for a conviction of attempted second-degree murder. The State countered that a reasonable jury could infer from the circumstances-that both Malik and Canty carried guns during a robbery, that at least one of those guns was loaded, and that Canty did not express shock or immediately flee after the shooting-that Canty had the requisite intent. The court denied Canty's motion.
In charging the jury, the court instructed that, to find Canty guilty of attempted second-degree murder, the jury had to consider both the law governing murder and the law governing attempt. The court explained second-degree murder as requiring proof that "on September 22, in Kings County, the defendants . attempted to cause the death of Gamal Alsaidi, and . the defendants did so with the intent to cause his death." (Tr. 861.) With regard to intent, the court stated that "a person is guilty of an attempt to commit a crime when, with the intent to commit a crime he or she engages in conduct which tends to bring about the commission of the crime." (Tr. 860.) The court continued, "in order to find the defendant guilty of attempted murder . you would have to find that the defendant intended to commit the crime of attempted murder, and that [he] did something to bring about that intent." (Id.) The court instructed that Canty could be convicted of attempted second-degree murder even if he had not been the one to shoot Alsaidi, stating that "when one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct." (Tr. 859.) The court continued that "any participation, no matter how slight, if it is done knowingly, does make one a participant and responsible for the acts of others." Id.
The jury convicted both defendants of attempted murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree. On November 18, 1999, the court sentenced Canty as a two-time felony offender to twenty years of imprisonment for the attempted murder count, ten years for the robbery count, and five years for the weapon possession count, all to run concurrently.
Canty appealed to the Appellate Division, Second Department. On appeal, Canty made several arguments, including that the conviction for attempted second-degree murder was not supported by sufficient evidence of intent. The court affirmed his convictions. People v. Canty, 305 A.D.2d 612, 612-13 (2d Dep't 2003). Leave to appeal was denied. People v. Canty, 100 N.Y.2d 579 (Table) (2003).
On June 25, 2004, Canty pro se moved pursuant to N.Y. C.P.L. § 440.10(1)(h) to vacate his conviction, alleging ineffective assistance of trial counsel. Justice Douglass of the Supreme Court, Kings County, denied the motion on September 27, 2004. Canty pro se sought leave to appeal to the Appellate Division, Second Department, which leave was granted on December 6, 2004. Canty then secured counsel for the appeal. On September 26, 2006, the Second Department affirmed the denial of Canty's § 440.10 motion. By letter dated October 31, 2006, Canty, through counsel, sought leave to ...