The opinion of the court was delivered by: John Gleeson, United States District Judge:
Conrad Marhone petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Marhone challenges his March 2002 convictions in New York State Supreme Court, Queens County, of murder in the second degree, two counts of robbery in the first degree, one count of robbery in the second degree and one count of criminal possession of a weapon in the fourth degree. Appearing pro se, Marhone seeks habeas relief on the grounds that he was denied a fair trial and received ineffective assistance of counsel. Oral argument was heard on December 14, 2010, at which Marhone appeared via videoconference from his place of incarceration. For the reasons stated below, Marhone's petition is denied.
The People's evidence at trial established that shortly before midnight on the evening of June 23, 1999, Marhone and three of his friends or acquaintances -- Rami Merchant, "Greg" and "Unique" -- convened on 195th Street in Hollis, Queens. The group met up again later that night in front of an abandoned house on 195th Street and discussed a plan to rob a Chinese food delivery man by giving him $20, quickly taking back the money, grabbing the food and running away. Although Marhone did not speak much at this meeting, he was carrying a metal baseball bat. Unique's planned role was to give and then take back the money, and Merchant's was to take the food and run. Greg rode his bike to a telephone and placed the order for the Chinese food.
When the Chinese food delivery man, Ng Cheung Cheung, arrived at the abandoned house with the food, Marhone was hiding with the bat in the bushes by the front of the driveway, Merchant was hidden on the other side of the house, Unique was directly in front of the house and Greg was across the street. Cheung parked his van on the opposite side of the street, crossed the street in response to Unique's call and stood in front of the abandoned house. Unique handed Cheung the money, and Marhone then walked up behind Cheung and hit him with the bat behind Cheung's right ear. Merchant had come out of hiding and faced Cheung as he fell to the ground, and Merchant then picked up the food and ran around the block. Marhone then swung the bat again and hit Cheung in the chest. After dealing Cheung this final blow, Marhone ran around the block to the backyard of a corner house, abandoning the bat somewhere along the way. The other three men soon joined him and they split up and ate the food.*fn1
A few minutes before midnight on the same evening, the police arrived at 100-45 195th Street in response to a call. Next door to this address was the abandoned house at which the robbery had taken place, and the police observed a man lying on the sidewalk in front of that house and a woman in the street, both yelling and screaming. Officer Patrick Nee attempted to speak with the woman, but he could not understand her language, which seemed to be Chinese. Cheung, the man lying on the sidewalk, appeared to be in tremendous pain, was screaming in Chinese and was bleeding profusely from the head. Cheung was taken by ambulance to the hospital, where he remained in critical condition for a few days. Cheung died some days later from the injuries he sustained to his skull.
1. The Trial and Sentencing
Marhone was charged with one count of depraved indifference second-degree murder, N.Y. Penal Law § 125.25(2), one count of felony murder, id. § 125.25(3), manslaughter in the first degree, id. § 125.20(1), two counts of robbery in the first degree, id. § 160.15(1) & (2), one count of robbery in the second degree, id. § 160.10(1), and criminal possession of a weapon in the fourth degree, id. § 265.01(2). He proceeded to a jury trial before Justice Richard Buchter of the New York Supreme Court, Queens County. On March 21, 2002, the jury convicted Marhone of all of the preceding counts. On April 22, 2002, Justice Buchter sentenced Marhone to a term of incarceration of 25 years to life on each count of second-degree murder, a determinate 25-year term on each count of first-degree robbery, a 15-year term on the second-degree robbery count and a one-year term on the fourth-degree criminal possession of a weapon count, all to run concurrently.
Marhone appealed from the judgment of the Supreme Court on the grounds that: (1) the trial court deprived him of his rights to a fair trial and the effective assistance of counsel by denying defense counsel's motions for a recess and a mistrial after counsel announced that he would have to testify to refute the testimony of the People's rebuttal witness and find another attorney to represent Marhone; and (2) there was insufficient evidence on which to convict Marhone of depraved indifference murder and the verdict was against the weight of the evidence, because no rational trier of fact could find that the killer acted recklessly or with the requisite depraved indifference to human life when he killed Cheung.
On December 16, 2008, the Appellate Division, Second Department, modified the Supreme Court's judgment by vacating Marhone's conviction for depraved indifference second-degree murder, vacating the sentence imposed on that conviction and dismissing that count of the indictment. People v. Marhone, 870 N.Y.S.2d 375, 376 (2d Dep't 2008). The Appellate Division reviewed Marhone's "unpreserved" legal insufficiency claim as to his depraved indifference murder conviction in the interest of justice, and held, "as the People correctly concede, that the evidence was legally insufficient to support the defendant's conviction of depraved indifference murder." Id. (citing, inter alia, People v. Payne, 3 N.Y.3d 266, 271 (2004)).*fn2 The Appellate Division further held that Marhone's remaining contentions were without merit. Id.
Miller applied for leave to appeal from this decision but a judge of the Court of Appeals denied his application on March 18, 2009. People v. Marhone, 12 N.Y.3d 785 (2009) (Ciparick, J.).
3. The Motion To Vacate the Judgment
Marhone moved pro se on June 15, 2010 to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. Marhone contended in his motion that his indictment was multiplicitous and trial counsel was constitutionally ineffective for failing to object to the indictment on that ground. He further argued that counsel's failure in this regard could not have been strategic, compromised the fairness of his trial and amounted to structural error, and that if counsel had objected to the indictment's multiplicity, Marhone would have been able to present a "dual defense to counterbalance the multiple theories." Ex. 2 to Pet., at 13. Marhone also contended that the jury was confused by the presentation of alternate theories of his guilt, which led it to mistakenly find Marhone guilty of both depraved indifference and felony murder.
On July 26, 2010, Justice Buchter denied Marhone's § 440 motion in a written opinion. The court held that Marhone's ineffective assistance claim was procedurally barred pursuant to New York Criminal Procedure Law § 440.10(2)(c) because it was "an on the record claim which could have been raised on defendant's direct appeal" but defendant "unjustifiably failed to do so." Marhone does not appear to have appealed from this decision to the Appellate Division.
4. The Motion for Reargument and Reconsideration
Marhone filed a motion pro se in the Appellate Division on July 10, 2010 seeking reargument and reconsideration of its decision on direct appeal pursuant to New York Criminal Procedure Law § 470.50(3). He asserted that the submission of the subsequently vacated depraved indifference murder count to the jury prejudiced its consideration of the felony murder count, and the depraved indifference murder conviction prejudiced him at sentencing. The Appellate Division denied ...