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Malcolm Baptiste v. Robert Ercole

January 20, 2011


The opinion of the court was delivered by: Hon. Thomas J. Mcavoy, Senior U.S. District Judge


Petitioner Malcolm Baptiste is an inmate in the custody of the New York Department of Correctional Services ("DOCS"). He was convicted by a jury in Schenectady County Court of two counts of second degree murder (N.Y. PENAL LAW § 125.25(2)) and second degree criminal possession of a weapon (N.Y. PENAL LAW § 265.03) and was sentenced to serve an aggregate term of fifty years to life in prison. Dkt. No. 1 at 2.

Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that: (1) the evidence was insufficient to prove depraved indifference murder; (2) his post-arrest statements should have been suppressed because police lacked probable cause to arrest him; (3) he was improperly precluded from calling a rebuttal witness; (4) trial counsel was ineffective; and (5) appellate counsel was ineffective. Dkt. No. 1 at 5-14, including attached pages; Dkt. No. 5, Memorandum of Law ("Mem.") at 10-32. Respondent has filed an answer, memorandum of law and the relevant state court records. Dkt. Nos. 13-20. Petitioner filed a reply memorandum. Dkt. No. 23. For the reasons that follow, the petition is denied and dismissed.

I. Relevant Background

The Supreme Court of New York, Appellate Division, Third Department, briefly summarized the facts of this case:

On August 11, 1995, defendant and his former girlfriend, Jeanette Cortijo, engaged in a verbal altercation, after which defendant uttered that he was tired of her and "I am going to kill her." In the early morning hours of August 12, 1995, the two had another altercation where defendant pushed Cortijo into her car. She then drove her car at defendant, causing him to fall off of the bicycle he was riding. He again stated that he was tired of her and was going to kill her. Defendant then retrieved his 9 millimeter gun from the apartment at 945 Emmett Street in the City of Schenectady, Schenectady County, where he lived with co-defendant Jamal Dennis*fn1 and three women. He and Dennis located Cortijo, leading to another verbal altercation. While the two men attempted to walk away, Cortijo followed them in her car, drove away, then quickly returned. At that point, at approximately 3:30 A.M., defendant shot into Cortijo's car multiple times, killing her and her passenger, Chakima Dickerson.

Defendant and Dennis then fled and returned to their nearby apartment, where defendant admitted to one of the women that he killed Cortijo. At approximately 4:00 A.M., defendant called a girlfriend in Brooklyn to pick him up.

An individual informed the police that he saw three men running in the direction of an alley next to 945 Emmett Street at about the time of the shootings. Police saw defendant, Dennis and others hurriedly loading a cab from Brooklyn at that location at approximately 9:00 A.M. Police questioned these individuals regarding their actions and the cab was searched, revealing nothing. The vehicle then left for Brooklyn. Later that morning, a downstairs resident of 945 Emmett Street called the police. She had found a shirt wrapped around a gun clip in the backyard bushes, which had not been there around 1:00 A.M. The clip contained 9 millimeter bullets of the same brand as the casings recovered from the crime scene. As a result of this discovery, the Schenectady police sent a bulletin to the State Police requesting that they stop the cab and detain its occupants. Several State Police cars stopped the vehicle on the Thruway. Troopers approached with guns drawn, requesting that everyone exit the vehicle. Each occupant was patted down, handcuffed and then transported to the State Police barracks in separate police cars. At the barracks, defendant was shackled to the wall in an investigation room and read his Miranda rights; he sat for about two hours and then was questioned. At first, defendant denied knowing anything about the incident. Questioning continued, intermittently, for several hours, during which time defendant was provided food, beverages and cigarettes. Meanwhile, in Schenectady, police located a 9 millimeter Glock pistol and empty clip in a vacant lot two blocks from the murder scene and one block from 945 Emmett Street.

At about 5:30 P.M., an investigator spoke with defendant, after again reading him his Miranda rights. Questioning elicited that defendant knew Cortijo, she was a former girlfriend and they had argued the previous night. A few hours later, defendant made an incriminating, but also exculpatory, oral statement to the investigator. The investigator then went through defendant's story again, reducing it to writing, which defendant reviewed and signed at about 11:30 P.M.

Defendant was charged by indictment with 11 counts, including two counts of murder in the second degree in violation of Penal Law § 125.25 (1), two counts of murder in the second degree in violation of Penal Law § 125.25 (2), and one count of criminal possession of a weapon in the second degree in violation of Penal Law § 265.03. Following an extensive Huntley hearing, County Court found the stop and subsequent arrest legal, rendering defendant's statements admissible. After a jury trial, during which several counts of the indictment were dismissed, defendant was convicted of two counts of second degree murder in violation of Penal Law § 125.25 (2) (depraved mind murder) and one count of criminal possession of a weapon in the second degree. Defense counsel unsuccessfully moved for a new trial, pursuant to CPL 330.30. County Court sentenced defendant to two consecutive prison terms of 25 years to life for the murder counts, and a concurrent prison term of 5 to 15 years for the weapon count.

People v. Baptiste, 306 A.D.2d 562, 563-64 (3d Dep't. 2003).

Petitioner timely appealed his conviction, arguing that: (1) the trial court erred by failing to dismiss the depraved indifference murder charges because if he was guilty at all, the shootings were intentional and not reckless; (2) his statements should have been suppressed as fruit of the poisonous tree because police lacked probable cause to arrest him; (3) the trial court deprived him of his right to confront witnesses against him by not permitting him to call witnesses to impeach a prosecution witness; (4) trial counsel was ineffective; and (5) the sentence was harsh and excessive. Dkt. No. 16, Ex. F at 63-86. The People opposed the appeal, and Petitioner filed a reply brief. Id. at Exs. G-H.

On April 24, 2001, while Petitioner's direct appeal was pending, he filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10 on the ground that trial counsel was ineffective for failing to: (1) raise the defenses of mental disease or defect or temporary insanity; (2) discuss trial strategy or any potential defenses with Petitioner; (3) call an expert witness; (4) request a missing witness charge; and (5) assisting the prosecution in obtaining a key witness. Dkt. No. 16, Ex. A. The Schenectady County Court denied the motion on August 6, 2001, finding that Petitioner received "effective assistance of counsel." Id., Ex. C, at 2. On October 10, 2001, the Appellate Division, Third Department, granted Petitioner leave to appeal that decision and consolidated it with Petitioner's direct appeal. Id. at Ex. E.

On June 5, 2003, the Appellate Division affirmed both Petitioner's conviction and the denial of his section 440 motion. Baptiste, 306 A.D.3d at 562-70. See Dkt. No. 16, Ex. J. Leave to appeal to the New York Court of Appeals was denied on January 26, 2004. Baptiste, 1 N.Y.3d 594 (2004); Dkt. No. 16, Ex. L.

On December 1, 2004, Petitioner filed a second section 440 motion on the ground that counsel was ineffective for failing to argue that: (1) the depraved indifference murder statute was unconstitutional as applied to Petitioner; and (2) the evidence was solely consistent with intentional murder. Dkt. No. 16, Ex. M at 5-20. The People opposed the motion, and Petitioner filed a reply. Id. at Exs. N-O. On May 12, 2005, the Schenectady County Court denied the motion pursuant to CPL § 440.10(3)(c) because Petitioner previously filed a section 440 motion alleging ineffective assistance of counsel but did not raise these grounds, and pursuant to CPL § 440.10(2)(a) because Petitioner's challenge to the "submission and conviction of Depraved Indifference Murder was raised and affirmed on appeal." Dkt. No. 16, Ex. P, at 2. The court also noted that Petitioner raised an ineffective assistance of counsel claim on direct appeal that was rejected. Id. The Appellate Division denied leave to appeal on July 28, 2005. Dkt. No. 16, Ex. R.

On August 31, 2005, Petitioner filed a writ of error coram nobis in which he argued that appellate counsel was ineffective for failing to argue trial counsel was ineffective for not arguing that the depraved indifference murder statute was unconstitutionally vague as applied to Petitioner. Dkt. No. 16, Ex. S, at 5-18. Petitioner also asked the Appellate Division to vacate its June 5, 2003 decision affirming his conviction and to permit additional briefing on whether the New York Court of Appeals's decision in People v. Payne, 3 N.Y.3d 266 (2004) was retroactively applicable to Petitioner's case. Id. at 18-27. The People opposed the writ, and Petitioner filed a reply brief. Dkt. No. 16, Exs. T-U. On October 14, 2005, the Appellate Division denied the writ. Id. at Ex. V. On June 5, 2007, the New York Court of Appeals denied leave to appeal. Id. at Ex. Y.

On August 9, 2006, Petitioner filed a third section 440 motion in which he argued that the New York Court of Appeals's decisions in People v. Suarez, 6 N.Y.3d 202 (2005) and People v. Feingold, 7 N.Y.3d 288 (2006), changed New York jurisprudence on depraved indifference murder, that these decisions should apply retroactively, and that his conviction should be reversed. Dkt. No. 16, Ex. Z at 5-16. The People opposed the motion. Dkt. No. 17, Ex. AA. On January 16, 2007, the Schenectady County Court denied the motion pursuant to CPL § 440.10(2)(a) because the Appellate Division found on direct appeal that the evidence was sufficient to sustain Petitioner's conviction for depraved indifference murder, and that "[a]lthough there has been a gradual and perceptive change in the law governing depraved indifference murder this change does not apply retroactively." Dkt. No. 17, Ex. BB. On February 12, 2007, Petitioner filed a motion to reargue, and he sought leave to appeal the denial of his motion. See Dkt. No. 17, Exs. CC, FF.*fn2

On April 17, 2007, the Appellate Division granted leave to appeal, and on January 9, 2008, it affirmed the denial of Petitioner's motion. Dkt. No. 17, Exs. HH, LL; People v. Baptiste, 51 A.D.3d 184 (3d Dep't 2008). The Appellate Division held that the law regarding depraved indifference murder changed beyond the "point of no return" on October 19, 2004, when the New York Court of Appeals decided Payne. Baptiste, 51 A.D.3d at 185. Since Petitioner's conviction was final before Payne was decided, the Appellate Division ruled that his section 440 motion was properly denied. Id. at 192-195. The New York Court of Appeals denied leave to appeal on June 13, 2008. Dkt. No. 17, Ex. PP; Baptiste, 10 N.Y.3d 932 (2008).

This action followed.


A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if the adjudication of the claim: (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. Schriro v. Landrigan, 550 U.S. 465, 473 (2007)(citing 28 U.S.C. §§2254(d)(1), (2)); Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir. 2009).

A state court decision violates the "contrary to" clause of section 2254(d)(1) when it "reaches a result opposite to the one reached by the Supreme Court on the same question of law or arrives at a result opposite to the one reached by the Supreme Court on a 'materially indistinguishable' set of facts." Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A federal habeas court may only grant the writ under the "unreasonable application" clause of the section when the state court's decision

"identifies the correct rule of law but applies that principle to the facts of the petitioner's case in an unreasonable way." Id. at 74 (citing Williams, 529 U.S. at 413). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold." Schriro, 550 U.S. at 473. Federal habeas courts are also required under AEDPA "to presume the correctness of state courts' factual findings unless applicants rebut this presumption with 'clear and convincing evidence.' " Id. at 473-74(quoting § 2254(e)(1)).

B. Ground One - Sufficiency of the Evidence

Petitioner alleges in Ground One of his petition that the Appellate Division's determination that New York law on depraved indifference murder changed when the Court of Appeals decided People v. Payne, 3 N.Y.3d 266 (2004)was an unreasonable application of Fiore v. White, 531 U.S. 225 (2001)(per curiam) and Bunkley v. Florida, 538 U.S. 835 (2003)(per curiam). See Dkt. No. 5, Mem. at 9-17; Dkt. No. 23, Traverse, at 1-4. Petitioner also argues that under the law at the time his conviction became final, "his conduct in deliberately firing a large number of shots at close range is solely consistent with intent and cannot make out the mental states of recklessness or depraved indifference." Dkt. No. 1 at 6; Mem. at 14-18; Dkt. No. 23 at 5-10.

Petitioner's claims are based upon his interpretation of the effect of the changes in New York's jurisprudence on depraved indifference murder. Currently, under New York law, a person is guilty of depraved indifference murder if, "under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." N.Y. PENAL LAW § 125.25(2). A reckless mental state exists when a person "is aware of and consciously disregards a substantial and unjustifiable risk" that death or serious injury will occur. People v. Bowman, 48 A.D.3d 178, 181 (3d Dep't 2007)(quoting PENAL LAW § 15.05[3] ), lv. denied 10 N.Y.3d 808 (2008). "The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." N.Y. PENAL LAW § 15.05(3). Because of a series of changes in New York law, however, what constitutes depraved indifference murder depends upon when a particular conviction has become final.

At the time of Petitioner's trial in 1996, the law regarding depraved indifference murder was reflected in People v. Register, 60 N.Y.2d 270 (1983), cert. denied 466 U.S. 953 (1984). Depraved indifference crimes contained both a mental element (recklessness) and a voluntary act (engaging in conduct which creates a grave risk of death to another person). Register, 60 N.Y.2d at 276. The requirement that a defendant's conduct occur " '[u]nder circumstances evincing a depraved indifference to human life" ' referred to "neither the mens rea nor the actus reus " but rather to "the factual setting in which the risk creating conduct must occur[.]" Id. (emphasis in original). The relevant focus at that time was on "the objective circumstances" in which the act occurred, and those circumstances defined "the degree of risk created by the defendant." Policano v. Herbert, 7 N.Y.3d 588, 597 (2006). Recklessness was the only culpable mental state for depraved indifference murder. See Rustici v. Phillips, 497 F. Supp. 2d 452, 484 (E.D.N.Y. 2007)(citing, inter alia, Register, 60 N.Y.2d at 274), aff'd 308 Fed. Appx. 4678 (2d Cir. Jan. 23, 2009).

After Petitioner was convicted, but before his conviction became final, the Court of Appeals decided People v. Sanchez, 98 N.Y.2d 373 (2002). In Sanchez, the defendant and the victim, who were acquaintances, exchanged "harsh words ... in a hallway near the foyer entrance of the apartment[.]" Id. at 375. Sanchez walked through the entrance doorway from the hallway where two children were playing in the foyer, away from the victim, who was behind a partially opened door. Sanchez abruptly turned around, fired a gun pointed at the victim's chest and fled. Id. at 375-76. Sanchez was convicted of depraved indifference murder. Id.

A majority of the New York Court of Appeals characterized Sanchez's actions as "virtually a knowing, although not intentional, homicide." Sanchez, 98 N.Y.2d at 384 (emphasis in original). The court explained that the jury could have found that the murder was reckless, and not intentional, because the two men were friends, the shooting appeared to have been "sudden, spontaneous and not well-designed to cause imminent death," and the jury may have concluded that this was an "instantaneous, impulsive shooting-perhaps to disable or frighten [the victim], rather than to kill him." Id. at 377-78. The court concluded that Sanchez's actions of shooting the victim in the torso at point blank range presented "such a transcendent risk of causing his death that it readily meets the level of manifested depravity needed to establish" depraved indifference murder. Id. at 378.

Between 2002 and 2006, New York's interpretation of the language " 'under circumstances evincing a depraved indifference to human life' ... gradually and perceptibly changed from an objectively determined degree-of-risk standard (the Register formulation) to a mens rea[.]" Alexander v. Graham, No. 07-CV-59, 2008 WL 4239167, at *6-7 (E.D.N.Y. Sept. 11, 2008)(quoting Policano, 7 N.Y.3d at 602-03)(internal citations omitted).

In the first of the cases, People v. Hafeez, 100 N.Y.2d 253, 258 (2003), the Court of Appeals affirmed the Appellate Division's reversal of Hafeez's depraved indifference murder conviction. The evidence showed that Hafeez lured the victim out of a bar, where his co-defendant was waiting with a knife "concealed ... in his sleeve poised to slip into his hand." Id. at 258. The co-defendant inflicted a single stab wound to the victim's chest, killing him in what the Court of Appeals characterized as "a quintessentially intentional attack directed solely at the victim." Id. 258. The co-defendant had "plotted his revenge for months in advance and effectuated his plan on the night of the stabbing by a scheme intended to place the victim in a position where he would be vulnerable to attack." Id. Since Hafeez's guilt was premised on a theory of accomplice liability, he could be guilty of depraved indifference murder only if he intentionally aided his co-defendant in the commission of the murder and shared his co-defendant's culpable mental state. Id. at 258. Because the ...

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