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Arturo Dejesus,00-B-2373 v. Supt. Gerald Greene

April 19, 2011

ARTURO DEJESUS,00-B-2373, PETITIONER,
v.
SUPT. GERALD GREENE, RESPONDENT.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings, including entry of judgment, with respect to this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. #10.

Petitioner, proceeding pro se, challenges his conviction following a jury trial before the Hon. Mario J. Rossetti, J.S.C., on the charges of attempted murder in the second degree in violation of sections 110.0 and 125.25(1) of New York's Penal Law and criminal possession of a weapon in the fourth degree in violation of section 265.01(2) of New York's Penal Law on the ground that the evidence of intent was insufficient to support his conviction. Dkt. #1. For the following reasons, the petition is denied.

BACKGROUND

On the evening of January 15, 2002, Carl Scott and Joe Campbell met petitioner and Jim Milligan and walked to petitioner's residence at 416 Jersey Street in the City of Buffalo. Trial Transcript at pages 291-293 ("T291-93"). Carl observed an empty bottle of Canadian Leaf whiskey on the coffee table. T294. They shared four forty ounce bottles of malt liquor and at about 10:00 p.m., petitioner, Carl and Joe went to the store to purchase beer, leaving Jim passed out on the couch. T219-295. When they returned to the residence, Jim woke up and Carl helped him get up from the couch so that he could go to the bathroom. T297. Carl testified that Jim was staggering and bumping into the wall as he walked to the bathroom. T298.

Carl testified that "Jim came staggering out of the bathroom and he sat on one of the chairs and these were white plastic chairs and the chair broke and that's when [petitioner] got pissed off." T299. Specifically, Carl testified that petitioner "started beating up on Jim," but "Jim being as intoxicated as he was . . . couldn't . . . fight back." T240 & T256. Carl and Joe observed petitioner kick and punch Jim in the head and back. T261 & T284. Joe recalled petitioner saying, "you're my cousin," but "you disrespected my house." T243.

Carl grabbed both of petitioner's arms and got him off of Jim and onto the couch, but petitioner "[g]ot back up and started punching" Jim in the face. T257, T285 & T302. Carl tried to break it up a second time, but was unable to do so. T285. Carl denied that Jim ever tried to fight back or ever grabbed petitioner by the throat. T300. Joe also denied observing Jim strike petitioner. T243. Carl testified that they were all drunk. T309. Joe testified that petitioner and Jim were drunk. T239.

City of Buffalo Police Officer Jason Mayhook and his partner, Anthony LaPiana were called to 416 Jersey Street in the City of Buffalo at approximately 1:45 a.m. on January 16, 2002. T113. Petitioner let the officers into the residence, at which time the officers observed two men, Joseph Campbell and Carl Scott, sitting on a couch and the victim, James Milligan, lying bloody and motionless on the floor. T114 & T122. Petitioner, Joseph Campbell and Carl Scott were each holding beer bottles. T131. Officer Mayhook asked what happened, and petitioner responded, "I beat the fuck out of him." T115 & T148. Petitioner continued,

I beat the fuck out of him. I did it all by myself. Why do you care. He's not human. Kiss my white Puerto Rican ass. T115.

Rural Metro paramedic Tracie Redmond testified that the victim had pretty significant facial head trauma. He was barely conscious, not really making much sense, basically just muttering unintelligibly, saying he was cold. Repetitive questioning, repetitive []statements. We put oxygen on him . . . eventually put him on a back board and got him in the ambulance, started IV's and drove quickly to the hospital.

T166. Ms. Redmond explained that she diagnosed "massive head trauma" because

He had large hematomas, which are basically giant bruises that swell, to his face, to his head. His pupils were unequal and repetitive questioning. He had all of those signs and symptoms of head injury. He wasn't alert and oriented.

T167. By the time the victim arrived at the hospital, the victim's "level of consciousness had decreased to the point where he needed . . . to be intubated." T169. Dr. Igoe examined the victim in the emergency room at the Erie County Medical Center, intubated him, diagnosed a serious brain injury and assessed his condition as critical and his prognosis grave. T275-80.

Officer Mayhook placed petitioner under arrest and transported him downtown, at which time he provided petitioner with Miranda warnings. T116 & T149. Thereafter, petitioner asked Officer Mayhook, is he dead yet. [sic] When is he going to fucking die. [sic]

T119 & T149. Officer Mayhook informed petitioner that his cousin was "in bad shape," prompting petitioner to respond, "[g]ood for his ass." T121. When asked on cross examination whether petitioner appeared intoxicated or high, Officer Mayhook testified that petitioner wasn't falling down. He wasn't slurring his speech. He was coherent, answered any questions I had for him.

T134. Officer LaPiana testified that he smelled alcohol on petitioner and had observed two or three forty ounce beers in the residence but denied that petitioner exhibited slurred speech or difficulty moving around or responding to the officers. T163-164.

City of Buffalo Police Detective Raniero Masecchia also provided petitioner with Miranda warnings before interviewing him. T179 & T181. After providing identifying information, petitioner stated that he beat the fuck out of my cousin. I beat him up. I fucked him up real bad. Then he asked me did I kill him. [sic] He goes [sic] I really beat the shit out of him.

T180. Petitioner provided the following written statement: me and Jimmy were home and Carl came over with his brother Joe. We sat ...


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