The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Edward Jones ("Jones" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state-custody resulting from a judgment against him entered in New York State Supreme Court (Monroe County, Fisher. J.), on February 7, 2001, following a jury trial convicting him Assault in the First Degree (New York Penal Law ("P.L.") § 120.10(3)), Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (Vehicle and Traffic Law ("VTL") § 511(2)(iv)), and Operation of a Motor Vehicle without a License (VTL § 509(1)). Jones was sentenced as a second violent felony offender to an aggregate determinate term of 18 years imprisonment and is currently serving this sentence.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). For the reasons that follow, Jones' request for a writ of habeas corpus is denied and the Petition is dismissed.
While investigating the theft of fifteen-year-old Tyrone Bennett's ("Bennett's) coat on the morning of January 18, 2000, Rochester Police Officer Scott McLaughlin ("Officer McLaughlin") was speaking to an individual at the corner of Main Street and Clinton Avenue in the City of Rochester with his back facing traffic when he was struck from behind by a vehicle driven by Petitioner. The force of the impact first catapulted McLaughlin onto the hood and windshield of the Cadillac and then propelled him into a stone sidewalk-planter, while the Cadillac crashed into McLaughlin's police vehicle. T.286.*fn1 The Cadillac pushed the police car 20 to 25 feet before it collided with a second police car; the conglomeration of the three cars continued moving for another 20 feet. T.652-53.
According to the medical testimony, Officer McLaughlin sustained devastating injuries--namely, a severe brain injury and multiple fractures to his lower extremities, which necessitated further surgery to replace part of his skull during the rehabilitation process. T.293.
Petitioner emerged from the crash relatively unscathed. Although he told the emergency room doctor that he had some pain in his shin, the examination revealed that Petitioner had sustained no injuries. T.782-83. Petitioner was treated for an epileptic seizure and released from the hospital several hours later.
Petitioner's medical records revealed a history of 6 epileptic seizures during the previous 8 months-- (May 25th (T.638), June 14th (T.592), July 24th (T.628), September 14th (T.579-81), September 29th (T.615), and November 11th (T.604)--all of which necessitated medical intervention. Just three days prior to the collision with Officer McLaughlin, Petitioner had arrived by ambulance at the emergency room after suffering yet another seizure. T.604-665. On that occasion, Jones informed the doctor that he had missed a couple of doses of Dilantin and Phenobarbital, the medicines prescribed to control his seizures. T. 671. Upon being discharged, Petitioner was informed that his seizure was due to his failure to take his medication as prescribed. Dr. Sato told Jones that his seizure "was most likely secondary to subtherapeutic Dilantin levels, that he wasn't taking his Dilantin regularly. T.678, 689. Dr. Sato testified that he told Jones that as a doctor it was his responsibility to tell him that he should not drive until he remained seizure-free for at least a year. T.680-81, 682, 698. According to Dr. Sato, Petitioner "looked at [him] in kind of shock, shook his head and looked like -- he gave me the look, that ["]what-am-I-supposed-to-do["] kind of look. T.681, 695. Dr. Sato did not recall Jones giving a verbal response. Id. Dr. Sato spoke with Jones' physician, Dr. Saha. T.685. Upon discharge, Dr. Sato increased his Dilantin levels to 200 mg twice a day. T.701-03. Previously Jones had been instructed to take 100 mg three times a day. T.702, 712. Therapeutically, he could attain the same levels by taking all of the medication at once; however, it was not the proper way to take the medication insofar as it increased the risk of side effects (hypotension). T.712.
Investigator Reinstein testified that, during the criminal investigation, Jones explained that three things that primarily brought on the seizures--lack of sleep, stress, and not having appropriate levels of medication. T.514. Jones confirmed that he had received enough sleep and was not under stress. Id. When asked if he was taking the proper levels of medication, "he just smiled and made no oral response." T.514-15. Jones said that his brother had told him that he (Jones) had experienced a seizure the previous night while was sleeping. T.515. Jones thus knew on the morning of the collision that he had had a seizure the night before. When asked about alternative means of transportation, Jones said he did not consider asking his brother for a ride or taking a cab because he "felt fine." T.516. He acknowledged that his licence had been suspended and that he tried to straighten it out in 1999 but could not. He did not elaborate further. Jones said that he was advised by his doctor "that he shouldn't be driving until he was seizure free for at least a year." T.520. Jones said that the last time he had been seizure-free was in 1995-1996 timeframe; the seizures began again in 1997. T.520.
Petitioner acknowledged that he had received this warning from the doctor regarding not driving, and he knew that he needed to take his prescription medication to prevent seizures. On the date of the collision, Petitioner made conflicting statements to the authorities about whether he had last taken his full dosage of medication the morning of the day before the collision, or whether he had taken it at all. T.382, 788.
The jury received instructions to consider the charge of Assault in the First Degree and the lesser-included offense of Assault in the Third Degree. T.982-986. The jury was also instructed with regard to Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree and Operation of a Motor Vehicle without a license. During deliberations, the jury requested that the court review the elements of Assault in the First Degree and Assault in the Third Degree. T.997. The jury sent a second note requesting the difference between depraved indifference and recklessness. T.007-08.
The jury returned a verdict convicting Petitioner of Assault in the First Degree (Penal Law § 120.10 (3)) for recklessly causing Officer McLaughlin's injuries under circumstances evincing a depraved indifference to human life. The jury rejected the lesser included offenses submitted to them for consideration. The jury also convicted on the two V.T.L. charges in the indictment (Aggravated Unlicensed Operation in the Second Degree and Unlicensed Operation). TM 161.
Jones was sentenced, as a second violent-felony offender, to a determinate term of 18 years in prison. The Appellate Division, Fourth Department, unanimously affirmed his conviction by decision entered October 1, 2004. People v. Jones, 11 A.D.3d 902 (N.Y. App. Div. 4th Dept. 2004). The New York Court of Appeals denied Petitioner's motion for leave to appeal on November 29, 2004. People v. Jones, 3 N.Y.3d 757 (N.Y. 2004).
This timely habeas petition followed.
III. General Legal Principles Applicable on Habeas Review of § 2254 Petitions
Only federal issues may be raised on habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), when a federal claim has been "adjudicated on the merits" by a state court, the state court's judgment is entitled to substantial deference. See Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001);28 U.S.C. § 2254(d). "[A] state court adjudicates a state prisoner's federal claim on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." (citations and quotations omitted). Sellan, 261 F.3d at 312.
For claims "adjudicated on the merits," habeas relief may not be granted unless the state court "decision" (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2). As the Supreme Court recently reiterated, the phrase "clearly established Federal law" "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Carey v. Musladin, ___ U.S.___, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quotation marks omitted)).
A state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different conclusion. Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. 1495. A state court decision involves an "unreasonable application" of clearly established federal law if it unreasonably applies Supreme Court precedent to the particular facts of a case. Id. at 409, 120 S.Ct. 1495. This inquiry requires a court to "ask whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application, in the reviewing court's opinion, was erroneous or incorrect. Id. In that respect, the standard to be applied "falls somewhere between merely erroneous and unreasonable to all reasonable jurists." Wade v. Mantello, 333 F.3d 51, 57 (2d Cir.2003) (quoting Jones v. Stinson, 229 F.3d 112, 119 (2d Cir.2000) (quotation marks omitted)). However, the "increment [of incorrectness beyond error] need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Eze v. Senkowski, 321 F.3d 110, 125 (2d Cir.2003) (quoting Matter of Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (quotation marks omitted)).
B. The "Adequate and Independent State Ground" Doctrine and Procedural Default
Ordinarily, federal courts may not review state court decisions that rest on an adequate and independent state procedural ground unless the petitioner can show both cause and prejudice or a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); see Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 885, 888, 151 L.Ed.2d 820 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question") (citation omitted)). A federal habeas court may not review a claim if a state court decision contains a plain statement that the claim is procedurally barred, even if the state court also reaches the merits of the claim in an alternative holding. Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (holding that). "In all cases in which a state prisoner has defaulted his federal [claim] in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the [claim] is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
To demonstrate cause for a procedural default, a petitioner must identify "some objective factor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). In addition to cause, a petitioner must demonstrate prejudice by showing that the errors worked to the petitioner's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Alternatively, a habeas petitioner may "bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir.2002); see also Murray, 477 U.S. at 496; Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
A. Prosecutorial Misconduct
Petitioner challenges the propriety of the trial prosecutor's statement during voir dire that "My job is to present evidence to you and to convince you of the Defendant's guilt beyond a reasonable doubt". On direct appeal, the prosecutor argued that Petitioner failed to object to the comment and therefore the issue was not preserved for appellate review. The Appellate Division agreed. People v. Jones, 11 A.D.3d 902, 903, 2004 N.Y. Slip Op. 06872 (App. Div. 4th Dept. 2004) ("We conclude that defendant's challenge to the prosecutor's remark is unpreserved for our review and without merit in any event. The record establishes that the remark, considered in its context, was intended to explain the prosecutor's role in the proceedings for the benefit of the prospective jurors, not to express the prosecutor's belief in defendant's guilt.")
Respondent correctly asserts that the issue was decided upon the independent and adequate state ground of non-preservation. The fact that the Appellate Division did rule on the merits in the alternative does not remove the independent and adequate state ground bar. Harris v. Reed, 489 U.S. at 264 n.10.
Petitioner may establish cause by showing " 'that the factual or legal basis for a claim was not reasonably available to counsel,' or that some interference by officials made compliance impracticable." McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1991)).
To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's actual and substantial disadvantage. See Amadeo v. Zant, 486 U.S. 214, 222, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988). If the petitioner cannot show cause and prejudice, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. A fundamental miscarriage of justice requires a showing "by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner [guilty]." Sawyer v. Whitley, 505 U.S. 333, 335, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).
Jones fails to establish cause for his procedural default, or prejudice resulting therefrom. Furthermore, he has not made a demonstration of "actual innocence" so as to convince the Court that a fundamental miscarriage of justice will result if I decline to entertain the procedural misconduct claim. Therefore, Ground One of the Petition must be dismissed as procedurally defaulted.
B. Trial Court Error -- Failure to Excuse a Juror for Cause
As his second ground for relief, Jones argues that the trial court erred in failing to excuse a juror whom defense counsel challenged for cause. The trial court denied defense counsel's motion to excuse this potential juror "for cause." T.102-03. Defense counsel then utilized a preemptory challenge to excuse the juror. T.106. See also Petitioner's Appellate Brief at Point II. On direct appeal, the Appellate Division concluded that, due to trial counsel's "failure to exhaust all of his peremptory challenges before the completion of jury selection, [Petitioner]... failed to preserve [that contention] for... review." People v. Jones, 11 A.D.3d at 903. Respondent argues that the claim is procedurally defaulted as a result of the state court's dismissal of the claim based upon an adequate and independent state procedural rule. See People v. Simpson, 292 AD2d 852 (App. Div. 4th Dept, 2002), lv denied 98 NY2d 655 ("Even assuming, arguendo, that the court erred in denying the challenge for cause, we conclude that reversal would not be warranted. "[E]rroneous denial of a challenge for cause 'does not constitute reversible error unless the defendant has exhausted his peremptory challenges at the time or, if he has not, he peremptorily challenges such prospective juror and his peremptory challenges are exhausted before the selection of the jury is complete' " (People v Lynch, 95 NY2d 243, 248 [(N.Y. 2000)], quoting New York Criminal Procedure Law ("C.P.L." 270.20(2)).
This Court is barred from exercising federal habeas review over Jones' challenge for cause claim by operation of C.P.L. § 270.20(2), an independent and adequate state law, which provides that an erroneous ruling by the court denying a challenge for cause does not constitute reversible error unless the defendant has exhausted his peremptory challenges at the time, or unless the defendant peremptorily challenges the prospective juror and exhausts his peremptory challenges before jury selection is complete. Accord, e.g., Burks v. McGinnis, No. 01-CV-1240(JG), 2002 WL 31410242, at *3 (E.D.N.Y. Oct. 3, 2002) (" Here, both of Burks's claims are procedurally barred because the Appellate Division denied them on the basis of adequate and independent state grounds. It denied the first claim because he failed to exhaust his peremptory challenges, thereby rendering harmless any erroneous ruling by the trial court. N.Y. CRIM. PRO. LAW § 270.20(2) ("An erroneous ruling by the court denying a challenge for cause by the defendant does not constitute reversible error unless the defendant has exhausted his peremptory challenges at the time or, if he has not, he peremptorily challenges such prospective juror and his peremptory challenges are exhausted before the selection of the jury is complete.").
Jones has not made the requisite showing to overcome this state procedural bar. Jones has failed to demonstrate, or even allege, cause and prejudice, or show that failure to consider his claim would result in a fundamental miscarriage of justice. No credible evidence in the record suggests that Jones is actually innocent of the crimes for which he has been convicted. Thus, this Court is barred from exercising federal habeas review over this particular claim. In any event and in the alternative, the Court finds that Jones has not demonstrated that the trial court's refusal to dismiss the juror for cause denied him a right to an impartial jury or prejudiced him in any way. After all, petitioner cannot be said to have been prejudiced given that he used a peremptory strike to remove the juror he had challenged for cause, the allegedly partial juror ultimately did not sit on Petitioner's jury, and at the conclusion of jury selection he had peremptory challenges remaining. Ground Two of Jones' Petition does not warrant habeas relief and is dismissed.
C. Verdict Unsupported by Legally Sufficient Evidence and Against the Weight of the Credible Evidence
1. Sufficiency of the Evidence
Jones argues that his due process rights were violated because the evidence presented at trial was insufficient to sustain his conviction for depraved indifference assault.*fn2 On direct appeal, the Appellate Division denied this claim on the merits as follows:
The evidence is legally sufficient and the verdict is not against the weight of the evidence with respect to the gravity of the risk presented by the fact that defendant, an epileptic, drove a motor vehicle after failing to take his prescribed medication, and with respect to defendant's awareness and disregard of that risk (see Penal Law § 15.05(3); § 120.10(3)).
People v. Jones, 11 A.D.3d 902, 903, 782 N.Y.S.2d 322, 324 (internal case citations omitted).
The well-settled standard applied on appellate review of a claim challenging the legal sufficiency of the evidence is whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord People v. Taylor, 94 N.Y.2d 910, 911 (2000); People v. Contes, 60 N.Y.2d 620, 621 (1983). In Jackson, the Supreme Court explained,
[A] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. 443 U.S. at 326, 99 S.Ct. at 2793. Thus, "[w]hen reviewing a conviction for an alleged insufficiency of evidence, [Federal courts] will view the evidence 'in the light most favorable to the government, and constru[e] all permissible inferences in its favor,'... 'resolve all issues of credibility[ ] in favor of the jury's verdict'... and 'uphold a conviction if any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt.'" United States v. Reyes, 157 F.3d 949, 955 (2d Cir. 1998); see also Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir.1994), cert. denied, 514 U.S. 1066 (1995). "In making this determination," the court does "not engage in piecemeal review, but rather, [it] review[s] the evidence as a whole." United States v. Khan, 53 F.3d 507, 513 (2d Cir. 1995) (citations omitted); accord, e.g., Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir.1996).
The resolution of issues of credibility, which often is central to the adjudication of a habeas petitioner's challenge to the legal sufficiency of the evidence, belongs exclusively to the jury, whose credibility determinations may not be overturned lightly. See United States v. Shulman, 624 F.2d 384, 388 (2d Cir.1980) ("Under our system of jurisprudence... the resolution of issues of credibility is exclusively the province of the jury."). When a habeas corpus court confronts a trial record from which conflicting inferences may be drawn, it must presume, even if the record does not show it affirmatively, that the trier-of-fact resolved the conflict in favor of the prosecution and must defer to that resolution. See Wright v. West, 505 U.S. 277, 296-97, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992). The reviewing court's role is not to weigh the trial evidence but rather it is "required to defer to the jury's resolution of all questions as to the credibility of the witnesses, the inferences to be drawn, and the weight of the evidence." United States v. Jacobo, 934 F.2d 411, 415 (2d Cir.1991). Thus, the reviewing court must defer to the jury's decision to believe a witness's testimony. See United States v. Khan, 53 F.3d 507, 514 (2d Cir.1995) (stating that "the credibility of witnesses is the province of the jury and we simply cannot replace the jury's credibility determinations with our own"); Maldonado v. Scully, 86 F.3d at 35 (explaining that "assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal; [court must] defer to the jury's assessments of both of these issues"). Thus, a "petitioner bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence." Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); see also Einaugler v. Supreme Court of the State of New York, 109 F.3d 836, 840 (2d Cir.1997); Quirama v. Michele, 983 F.2d 12, 14 (2d Cir.1993)). "[W]hen a federal habeas court conducts AEDPA review of a state court's sufficiency ruling, it does not apply the Winship rule [as explicated in Jackson] by itself; it must first look to state law to determine the facts necessary to constitute the charged crime, in short, the crime's elements." Policano v. Herbert, 453 F.3d 79, 92 (2d Cir. 2006) (citing Fama, 235 F.3d at 811 (internal quotation marks omitted)). "It is well established that a federal habeas court may not second-guess a state court's construction of its own law." Policano, 453 F.3d at 92 (citing Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. 475 ("[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions."); Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (holding that "state courts are the ultimate expositors of state law"). To determine the essential elements of the crime, the habeas court must look to state law. Jackson, 443 U.S. at 324 n. 16.
To prove a defendant guilty of Assault in the First Degree (i.e., depraved indifference assault) under New York law, the prosecution needs to establish three elements: (1) reckless conduct creating a grave risk of death, (2) committed under circumstances which, objectively viewed, evince a depraved indifference to human life, and (3) a resultant "serious physical injury." N.Y. PENAL LAW § 120.10(3); see also People v. Van Norstrand, 85 N.Y.2d 131, 623 N.Y.S.2d 767 (1995) ("A person commits the... crime of first degree assault under Penal Law § 120.10(3) when "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death... and thereby causes serious physical injury").
As Petitioner explained on direct appeal, the sole element of the offense in question in this case concerned his knowledge of the potential consequences of driving with epilepsy. In other words, the key issues for the trier of fact to resolve were whether Jones engaged in conduct which created a substantial, unjustifiable and grave risk that death to another person, whether he was aware of and consciously disregarded that risk, and whether that risk was of such nature and degree that disregard of it constituted a gross deviation from the standard of conduct that a reasonable person would observe in the situation. Petitioner argues that the evidence was insufficient to prove that he acted recklessly, and with depraved indifference to human life, when he conducted a motor vehicle, and underwent an epileptic seizure, thereby losing control of his car, which ran over Officer McLaughlin and caused him severe injuries. The prosecution argued that, given Petitioner's long history of seizures, and particularly the pointed warning he was given by doctors just days before the accident that he should not drive, the proof clearly established all of the elements of depraved indifference assault. In attempting to minimize the doctor's testimony warning Jones that he should not drive until he was seizure-free for one year, Jones' appellate counsel argued that the doctors did not advise him of the specific potential consequences of driving a motor vehicle while suffering from an unpredictably self-managed seizure disorder. Therefore, the defense argued, the prosecution failed to establish that Jones had actual knowledge of the possible consequences of operating a motor vehicle given his current medical status.
Importantly, Jones' conviction of depraved indifference assault predates People v. Feingold, 7 N.Y.3d 288, 294, 819 N.Y.S.2d 691, 852 N.E.2d 1163 (N.Y. 2006), in which the New York Court of Appeals reformulated of its view of "depraved indifference." "The change in law announced in Feingold firmly and finally altered the depraved indifference element of depraved indifference murder, but did not change the recklessness element. This change in law, moreover, is not retroactive, and therefore has no bearing on defendant's conviction, which was finalized a year before the Court of Appeals rendered the People v. Feingold decision." People v. James, No. 2311/01, 2007 WL 959712, *3 (N.Y. Sup. Ct. Mar. 30, 2007) (citing Policano v. Herbert, 7 N.Y.3d 588 (N.Y. 2006)). Jones' case therefore is governed by the prior "depraved indifference" standard set forth in, e.g., People v. Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704 , cert. denied 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544 , overruled by People v. Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163  ), People v. Sanchez.
In the Register line of decisions, the New York Court of Appeals had held that "depraved indifference, as applied to the crimes of murder, assault, and reckless endangerment, was neither a culpable mental state nor a specific set of actions... [T]hose cases held that depraved indifference murder included a mens rea of recklessness, and that the crime's proof entailed a showing that the circumstances surrounding the crime, when objectively viewed, evinced depraved indifference to human life." People v. Danielson, 40 A.D.3d 174, 189, 832 N.Y.S.2d 546, 557 (App. Div. 1st Dept. 2007) (dissenting opn.); see also People v. Wells, 53 A.D.3d 181, 189, 862 N.Y.S.2d 20, 26 (App. Div. 1st Dept. 2008) ("Under Register, depraved indifference murder requires that a defendant's act be imminently dangerous, present a very high risk of death to others and be committed under circumstances that evince a wanton indifference to human life or a depravity of mind (see Register, 60 N.Y.2d at 274, 469 N.Y.S.2d 599, 457 N.E.2d 704). The requirement of depraved indifference refers neither to the mens rea nor to the actus reus; rather, it refers to "the factual setting in which the risk creating conduct must occur" (id. at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704) (emphasis supplied)). "Typically, conduct must put multiple individuals at risk in order to satisfy the 'circumstances evincing a depraved indifference to human life' element." People v. James, 2007 WL 959712, at *4.
Recklessness, on the other hand, is measured by proof of the defendant's subjective mental state. People v. Parrotte, 267 A.D.2d 884. 702 N.Y.S.2d 137 (3d Dept. 1999) (concurring opn.). The defendant's subjective mental state, however, is not pertinent to determining whether the objective circumstances bearing on the nature of his reckless conduct are such that the conduct created a very substantial risk of death. People v. Roe, 74 N.Y.2d 20, 24. 544 N.Y.S.2d 297); People v. Parrotte, 267 A.D.2d 884, 702 N.Y.S.2d 137 (3d Dept. 1999). New York's Penal Law states that "a person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists." N.Y. PENAL LAW § 15.05(3). "Therefore, the crime of first degree depraved indifference assault under Penal Law § 120.10(3) occurs when an actor 'is aware of and consciously disregards' 'a grave risk of death to another person.'" People v. VanNorstrand, supra.
Viewing the trial proof in the light most favorable to the prosecution, and drawing all reasonable inferences in its favor, the evidence established that Petitioner had been treated for epilepsy at least from January 1981 through to the date of the assault, and had experienced a seizure just three days prior to the incident. See T.717-20. During the eight month period preceding the collision, Petitioner had suffered numerous seizures which necessitated medical intervention. See T.638, 592, 628, 579-81, 615, 604. As a result of the most recent seizure predating the incident, Jones had been taken by ambulance to the hospital. Jones, who was supposed to take doses of Dilantin and Phenobarbital twice daily to control his seizures, informed the doctor that he had missed a couple of doses of these medications. T.664-61, 671. Upon discharge, the treating doctor informed Petitioner that he had suffered an acute breakthrough of his seizure disorder, resulting from his failure to take his prescribed medication. (An "acute breakthrough" describes what happens when a person whose condition was previously controlled with medication suddenly experiences a seizure.) As a result of this seizure, the doctor warned Jones not to drive a vehicle until he was seizure free for an entire year.
Petitioner acknowledged that, just three days prior to the incident, he had been admonished by the emergency room doctor that he should not drive for a year, and that he must take his prescribed medication on schedule. However, on the date of the collision Jones variously admitted that he had either last taken only one dosage of his medicine the previous morning, T.382, or was uncertain whether he had taken it at all, T.788.
The prosecution argued that, given the foregoing testimony by the medical personnel, among others, Petitioner "knew he was subject to epileptic attacks and seizures that might strike at any time, and also "knew that a moving motor vehicle uncontrolled on a public highway is a highly dangerous instrumentality capable of unrestrained destruction." People's Appellate Brief, (quoting People v Decina, 2 N.Y.2d 133, 139-140 (1956) (holding that an indictment which stated that defendant, knowing that he was subject to epileptic attacks rendering him likely to lose consciousness, was culpably negligent in that he consciously operated his automobile and while so doing suffered an epileptic attack causing his automobile to drive over a sidewalk, causing the death of 4 persons ([former] Penal Law, § 1053-a), was legally sufficient)). The prosecution argued that "[w]ith this knowledge, and without anyone accompanying him, [Petitioner] deliberately took a chance by making a conscious choice of a course of action, in disregard of the consequences which he knew might follow from his conscious act, and which in this case did ensue." Id. (quoting Decina, 2 N.Y.2d at 139-140).
I cannot say that the Appellate Division was "objectively unreasonable" in concluding that a rational jury, drawing all evidentiary inferences in favor of the prosecution and being instructed on the law of depraved indifference as it existed at the time, would be unable to find a valid line of reasoning from which it could conclude Petitioner, was aware of and consciously disregarded a substantial and unjustifiable risk brought about by operating a motor vehicle given his presently uncontrolled seizure disorder. Furthermore, and again drawing every favorable inference in the prosecution's favor, a valid line of reasoning existed from which a rational person, applying the law as it stood under People v. Register, could have found that Petitioner acted "[u]nder circumstances evincing a depraved indifference to human life." In People v. Gomez, referring specifically to the use of a motor vehicle "in a wanton and callous manner", New York Court of Appeals observed that "[t]he focus of the depraved mind murder statute is to allow a trier of fact to discern depravity of mind from the circumstances under which an object or instrumentality is used[.]" 65 N.Y.2d 9, 11-12 (N.Y. 1995) ("Driving a speeding motor vehicle onto a busy Manhattan street and then down a crowded sidewalk at a high rate of speed for two blocks satisfies the requirement that the defendant acted recklessly, i.e., that he was aware of and consciously disregarded a substantial and unjustifiable risk.... [D]efendant sped out of the gas station and entered traffic on a busy New York street at a speed in excess of 40 miles per hour. After striking two cars, he continued accelerating for nearly a block, partly on a sidewalk, until he struck the first victim. These factors, particularly the excessive speed and the failure to brake, satisfy the depraved indifference element."); accord, e.g., People v. Padula, 197 A.D.2d 747, 602 N.Y.S.2d 737 (App. Div. 1993), lv. denied 82 N.Y.2d 928, 610 N.Y.S.2d 180, 632 N.E.2d 490 (N.Y. 1994) (excessive rate of speed, failure to brake or take other evasive action, and decision to get behind the wheel of vehicle after becoming intoxicated, legally sufficient evidence of depraved mind murder)). See also People v. Wells, 53 A.D.3d 181, 189, 862 N.Y.S.2d 20, 26 (App. Div. 1st Dept. 2008) (Evidence that defendant's conduct displayed a depraved indifference to human life overwhelmingly supported conviction for depraved indifference murder and depraved indifference assault; having chosen to drive while highly intoxicated, defendant drove in an extremely reckless manner on city streets, failing to stop for traffic lights and, in fact, increasing his speed after narrowly missing one collision, before striking another vehicle, and fact that he tried to flee the scene showed he was not so impaired as to be unaware of what he had done.); People v. Hoffman, 283 A.D.2d 928, 725 N.Y.S.2d 494 (App. Div.), lv. denied 96 N.Y.2d 919, 732 N.Y.S.2d 636, 758 N.E.2d 662 (N.Y. 2001) (drinking and driving, excessive rate of speed, disobeying traffic signals, and failing to brake before he broadsided vehicle, killing and injuring the passengers therein, legally sufficient evidence of depraved mind murder).
Given the circumstances present here and the law in force at the time of Petitioner's conviction, I cannot find that the Appellate Division unreasonably applied the "rigorous standard," Wheel, 34 F.3d at 66, set forth in Jackson v. Virginia and People v. Contes, for evaluating the legal sufficiency of the evidence supporting Petitioner's conviction for depraved indifference assault.
2. Weight of the Evidence
Petitioner's further claim that the verdict is against the weight of the evidence is not a cognizable claim on federal habeas review. E.g., Young v. Abrams, 698 F.2d 131, 135 (2d Cir. 1983); Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) ("a writ of habeas corpus cannot be used to review the weight of evidence..."), aff'd, 263 U.S. 255 (1923). Therefore, it must be dismissed.
D. Failure to Suppress Statements Made by Petitioner in the Ambulance and at the Hospital
Petitioner contended on direct appeal that Jones' statements made in the ambulance and at the hospital were all made under conditions that constituted the practical equivalent of custodial interrogation requiring prior issuance of the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and therefore the trial court committed reversible error in denying the defense motion to suppress those statements. The prosecution countered that rather than being subjected to interrogation, Petitioner merely underwent questioning that was investigatory in nature, and was designed to clarify the nature of the situation confronted, rather than to coerce a statement from a suspect. As a consequence, the prosecution contended, Miranda warnings were not required.
1. The Suppression Hearing and the State Courts' Holdings
A pre-trial hearing was held relating to the suppression of oral and written statements made by Jones. 8/21/00 Tr. at 3-4. The ...