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Langston v. Smith

August 6, 2010


The opinion of the court was delivered by: Korman, J.


Kevin Langston was found guilty, after a jury trial in the Supreme Court of the State of New York, Kings County, of first-degree felony assault, N.Y. Penal Law § 120.10(4), and second-degree criminal possession of a weapon, N.Y. Penal Law § 265.03(2). On October 24, 2003, he was sentenced to concurrent prison terms of twenty-five and five years, respectively, and is currently incarcerated at Shawangunk Correctional Facility in Wallkill, New York. Langston appealed his convictions to the Appellate Division, Second Department, claiming that the evidence of his guilt was legally insufficient to prove that he criminally possessed a weapon or that the assault was in furtherance of the possession. (Appellant's Br., 30-41.) On January 17, 2006, the Appellate Division held that the evidence presented was legally sufficient on both counts. See People v. Langston, 806 N.Y.S.2d 886 (2006). Langston unsuccessfully sought leave to appeal to the Court of Appeals. See People v. Langston, 816 N.Y.S.2d 755 (2006). This petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 followed. The case was reassigned to me on February 1, 2010.


The events that led to Langston's arrest, trial, and conviction stem from a New York Police Department ("NYPD") gun buy-and-bust gone awry. On the evening of May 22, 2002, NYPD undercover detectives John Robert and Arthur Marquez drove to Junior's restaurant in downtown Brooklyn, where they met with Edward Moultrie and arranged to buy four 9-millimeter handguns for $3,000. Moultrie introduced the detectives to Langston, (Tr. Transcript, 513, 687-88), who informed them that the guns were currently being held at 301 Sutter Avenue in Brooklyn, (id. at 973).

All four men drove to the directed address in the detectives' car, at which point Langston said: "Okay, give me the money, I'll be right back." (Id. at 552.) Detective Robert replied: "Go get the guns, bring them down here, and after we look at them, I'll give you the money." (Id. at 553.) Langston reluctantly entered the building, leaving the other three men outside. Upon returning to the vehicle, Langston again demanded the money for the guns upfront. (Id. at 974.) The detectives, however, again refused to turn over any money until the firearms were produced. (Id. at 552-54, 974.) Langston then demanded reimbursement for the cab fare he paid in coming from Manhattan to arrange the exchange. (Id. at 557.) The detectives also refused this request, and Langston reentered the building for several minutes. (Id. at 559.) He returned with a proposal that the gun sale occur within the building's sixth floor hallway, to which the detectives agreed. (Id.) Once inside the building, the detectives met several people in the lobby, including Gamel Cherry, who indicated that he would be helping to set up the exchange. (Id. at 560, 975, 998-99.)

At Langston's request, the four men took an elevator up to the sixth floor. (Id. at 560, 976-77.) On the way up, the elevator stopped at the fifth floor, and the doors opened to reveal two men, one of whom was named Skyler Brownlee, standing in the hallway waiting for the elevator to arrive. Langston testified at trial that he never acknowledged Brownlee, (id. at 977-78), but the detectives testified that there was a greeting of sorts between the men, (id. at 562, 712-13).

Brownlee and the other man did not get on the elevator, which then proceeded to the sixth floor, where Langston yet again demanded money for the guns. (Id. at 562, 713-14, 978.) The detectives again refused, and Langston left the hallway to see if he could arrange the exchange. (Id. at 564.) A few minutes later, he returned to the sixth floor hallway and told the detectives that "they don't want to do it like that." (Id. at 566, 715-16, 740-41.) Moments later, Cherry emerged from the stairwell and stated: "I don't do business like that. Just give me the money upfront and I'll get the guns." (Id. at 565-66, 600, 603, 717, 741-42.) This now-familiar argument continued for some time until Cherry requested to see identification from the detectives, and Detective Marquez complied. (Id. at 569-70, 719, 980.) The detectives testified at trial that Cherry then left the hallway, saying: "Okay, we're going to do this, you're going to get what you came here for." (Id. at 571, 604, 720, 742.) Langston testified that Cherry left saying nothing. (Id. at 981.)

Approximately five minutes later, Cherry re-entered the hallway with a gun, flanked by Skyler Brownlee and Ralph Wyman, who were also armed. (Id. at 574, 721-23.) The three men, apparently no longer interested in the sale of guns, began shooting at the detectives, who returned fire. (Id. at 575-76, 723-25, 982-83.) Although the detectives managed to escape from the building, Detective Marquez sustained a gunshot wound to the hand. (Id. at 576-78, 725-27.) Langston was shot in the arm and buttocks, and Moultrie was shot in the back and face, and left paralyzed as a result. (Id. at 983.) During the incident, neither Langston nor Moultrie physically possessed a gun. (Id. at 609, 754, 764.)

Following the shootout, Langston fled the building and was later apprehended at Vansideren Subway Station, where he told police that he had been the victim of a robbery. (Id. at 667, 988.) Up until the time that gunfire erupted, the botched gun deal was being electronically monitored by NYPD detectives Dante Cavallo and Robert Delaney through the use of a wire. (Id. at 512.) Once the firing ceased, Detective Cavallo entered the sixth floor of the building and found Moultrie lying on the floor near the elevator. (Id. at 518, 860.) He discovered a 9-millimeter gun and shell casings on the floor, along with a discharged .22-caliber bullet shell and live cartridge. (Id. at 518-19, 778, 861.) Another NYPD detective, Samuel Guilford, testified at trial that no usable fingerprints were found on the gun, (id. at 779), and the .22-caliber pistol was never recovered.

Langston gave written and videotaped statements to the NYPD following the incident. (Id. at 997.) In the videotaped statement, he contended that he met Moultrie in Manhattan and agreed to help him sell guns to the undercover detectives. (Id. at 1017-18.) When asked whether anyone was waiting for the elevator when it arrived on the fifth floor at 301 Sutter Avenue, Langston initially claimed he didn't see anyone, though he later admitted in court that he had lied. (Id. at 1011-12.) Langston also explained that he lied in his statement when he said that he did not know Cherry. (Id. at 997.) Moreover, contrary to his videotaped statement, he claimed at trial that he had never provided the actual directions to 301 Sutter Avenue. (Id. at 1020.) Langston maintained that he lied during his videotaped statement because NYPD detectives threatened him with life imprisonment if he did not say what they wanted him to say. (Id. at 1012, 1015, 1031.)


Langston argues that the evidence presented at his trial was legally insufficient to support both his weapon possession conviction (Count Two) and assault conviction (Count One). (Pet'r's Br., 21-22.) In order to prevail under a sufficiency of the evidence argument in a habeas proceeding, the petitioner "bears a very heavy burden." Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). In assessing such cases, the reviewing court must decide 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) (emphasis in original). "Criminal convictions may issue only upon proof beyond a reasonable doubt of every element of the charged offense." Justice v. Hoke, 45 F.3d 33, 34 (2d Cir. 1995) (citing In re Winship, 397 U.S. 358, 364 (1970)) (emphasis added). When it considers the sufficiency of the evidence of a state conviction, "[a] federal court must look to the state law to determine the elements of the crime." Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000) (quoting Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999)).

In Jackson v. Virginia, the Supreme Court explained the importance of preserving the role and responsibility of the trier of fact to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." 443 U.S. at 307. The ultimate decision of the factfinder is paramount and "is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." Id. (emphasis in original). In sum, the weight and credibility of the evidence are issues for the jury to resolve and the reviewing court must "defer to the jury's assessments of both of these issues." Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). "The ultimate question is not whether we believe the evidence ...

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