Edgar Ortega has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction at trial on one count of murder in the second degree. Ortega is serving a sentence of twenty years to life imprisonment. Ortega argues principally that the evidence at trial was insufficient to establish that he acted with depraved indifference and that his trial counsel was ineffective when he failed to move at the conclusion of the evidence for a directed verdict on this specific ground.
On June 15, 2010, the Honorable Debra Freeman recommended that the petition be denied ("Report"). Ortega, who is represented by counsel, has objected to the Report. For the following reasons, the petition is denied.
The evidence at trial established that Ortega and his girlfriend Sheila Cordell had a tumultuous relationship and a history of fighting. At the time of Cordell's death, she was living with Ortega in his fourth-floor Manhattan apartment. That night the two went to dinner and bickered. They went their separate ways after dinner, with Ortega arriving home about 3:00 a.m. on May 25, 2003, and Cordell arriving at the apartment at about 4:30 a.m. By 5:00 a.m. they were engaged in a violent, loud argument that frightened neighbors and firefighters at a nearby station. Ortega was tossing Cordell around the apartment, gripping her neck, pulling her hair, and pinning her against an open window. Cordell kept screaming "let me go" and "get away from me."
In the course of the fight, Ortega pushed Cordell and she fell through the window to her death in the courtyard below. The window was 5'10" wide; its windowsill was about 2' from the floor. The window was open about 2' and had a poorly-fitted screen that Ortega had taped to the window frame. Cordell was 5'6" tall.
Ortega gave inconsistent statements to the police and firefighters who arrived on the scene and then to investigators during a videotaped statement provided after he had been given Miranda warnings. Among other things, Ortega described pushing and shoving Cordell, but also said that she jumped out of the window or fell from it. One of Ortega's friends testified that Ortega left a voicemail message for him at about 5:20 a.m. in which Ortega said "I think I killed her."
Ortega was indicted on June 13, 2003 with second-degree murder, first-degree manslaughter, and second-degree manslaughter. Trial began on September 8, 2005. The State called 38 witnesses; Ortega did not testify, but called five witnesses. At the close of the evidence, the trial court dismissed the first degree manslaughter charge. Defense counsel requested that the two remaining counts be dismissed because the evidence "does not prove a prima facie case," and the State had not proven that the defendant committed either of the crimes. Defense counsel did not seek dismissal of the murder charge, however, on the ground that the evidence was legally insufficient to support the element of depraved indifference. The motion was denied.
With respect to the "depraved indifference to human life" element of the second-degree murder count, the trial court charged the jury, inter alia, that it should "decide whether the circumstances surrounding the conduct, when objectively viewed, made the conduct so uncaring, so callous, so dangerous and so inhuman, as to demonstrate an attitude of total and utter disregard" for the victim's life. As to the mens rea requirement, the jury was instructed that a defendant acts recklessly if he has created a risk and "he is aware of and consciously disregards that risk and . . . that risk is of such nature and degree, that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation." The trial court further charged that a person may act recklessly if he is unaware of a risk "solely by reason of his or her voluntary intoxication." Defense counsel did not object to the charge, and on October 7, 2005, the jury convicted Ortega of second degree murder. Ortega was sentenced on November 3, 2005.
Ortega filed a post-conviction § 440.10 motion asserting that trial counsel was ineffective in that he failed to move at the close of the evidence for dismissal of the murder count on the ground that the evidence was not legally sufficient to establish depraved indifference. The motion was denied on December 20, 2006 on procedural grounds and on the merits. People v. Ortega, No. 3024/03 (N.Y. Sup. Ct. Dec. 20, 2006).
Ortega's direct appeal and appeal from the denial of the § 440.10 motion were consolidated. On January 17, 2008, the First Department affirmed the conviction. People v. Ortega, 849 N.Y.S.2d 253, 253 (N.Y. App. Div. 2008). Although it found that Ortega had not preserved his legal insufficiency claim, it held in the alternative that the claim was without merit. Id. at 254. It ruled that the trial court had "charged the jury in accordance with the law at the time." Id. It described the evidence as proving that during a violent altercation in an apartment, [Petitioner] beat the victim and pinned her against an open window several times. The window had a poorly fitting screen that was secured by tape and incapable of preventing a person from falling through. At one point, the victim was pushed and went out the window and landed four floors below, causing her death. . . . The evidence supports the inference that . . . [Ortega] callously and wantonly exposed the victim to an extreme risk of death, without intending that outcome.
Id. The Appellate Division also rejected the ineffective assistance claim, citing the standards in Strickland v. Washington, 466 U.S. 668 (1984), and People v. Danielson, 9 N.Y.3d 342 (2007). Ortega, 849 N.Y.S.2d at 254. In Danielson, the Court of Appeals rejected an ineffective assistance of counsel claim where the evidence presented at trial could have supported a depraved indifference murder verdict "under the law at the time of trial." Danielson, 9 N.Y.3d at 350. The New York Court of Appeals denied leave to appeal on April 14, 2008. People v. Ortega, 10 N.Y.3d 842 (2008).
Ortega's counsel filed this habeas petition on June 18, 2009. The petition contends that the trial evidence was "legally insufficient" to establish "depraved indifference" and that Ortega's trial counsel was constitutionally ineffective for failing to make that specific objection at trial and to preserve that issue for appeal. The petition was referred to Magistrate Judge Freeman on July 2, 2009, and she filed her Report recommending denial of the petition on June 15, 2010. Ortega has objected to the Report.
A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The court must make a de novo determination of the portions of the report to which petitioner objects. Id.; see ...