The opinion of the court was delivered by: Briccetti, J.:
Now pending before the Court is Magistrate Judge Paul E. Davison's Report and Recommendation ("R&R"), dated July 11, 2011 (Doc. #29), on Jecoina Vinson's petition for a writ of habeas corpus. Magistrate Judge Davison recommended the Court deny the petition in its entirety. The Court adopts the R&R as the opinion of the Court. The petition is denied and dismissed.
A district court reviewing a magistrate judge's recommended ruling "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)(C). Parties may raise objections to the recommended ruling, but they must be "specific" and "written," and submitted "[w]ithin 14 days after being served with a copy of the recommended disposition." Fed. R. Civ. P. 72(b)(2); see 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and recommendation, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. 28 U.S.C. § 636(b)(1)(C). The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record. See Wilds v. UPS, Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). The clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates his original arguments. Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008).
The objections of parties appearing pro se, such as petitioner herein, are "generally accorded leniency" and should be construed "to raise the strongest arguments that they suggest." Milano v. Astrue, 2008 WL 4410131, at *2 (S.D.N.Y. Sept. 26, 2008).*fn1 "Nonetheless, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument." Pinkney v. Progressive Home Health Servs., 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008).
The Court presumes familiarity with the factual and procedural background of this case and only recounts those basic facts relevant to this decision. Petitioner was charged with one count of murder in the second degree (depraved indifference murder), in violation of New York Penal Law § 125.25(2); one count of manslaughter in the first degree, in violation of New York Penal Law § 125.20(1); and one count of gang assault in the first degree, in violation of New York Penal Law § 125.07. Petitioner was convicted on December 10, 1998, of depraved indifference murder and gang assault in the first degree, and sentenced on April 6, 1999.
Petitioner objects to the R&R for three reasons. He argues that (1) the magistrate judge improperly applied the case law to his petition; (2) the indictment was defective for charging two inconsistent mental states, and the trial court erred in its instructions to the jury on this issue; and
(3) the evidence was not legally sufficient to support the charge of depraved indifference murder. Plaintiff's first objection is a general objection reviewed for clear error. The second and
third objections are reviewed under a de novo standard. Under either standard, the Court finds the R&R to be a correct application of the law and adopts it.
The Court will nonetheless address petitioner's specific objections. I. Inconsistent Mental States Charged in Indictment
Petitioner argues he received ineffective assistance of counsel because counsel failed to file a motion to dismiss the indictment, which charged inconsistent mental states. In addition, petitioner argues the trial court erred in its instructions to the jury regarding the inconsistent mental states.
"An indictment is not defective simply because it charges a defendant with alternative offenses. Indeed, New York's Criminal Procedure Law specifically contemplates the possibility of being charged with inconsistent offenses. What it protects against is a conviction on inconsistent offenses." Whitfield v. Ricks, 2006 WL 3030883, at *12 (S.D.N.Y. Oct. 24, 2006) (citing New York Criminal Procedure Law § 300.3(5)) (footnote omitted). The New York Criminal Procedure Law provides: "If an indictment contains two inconsistent counts, the court must submit at least one thereof [to the jury]." N.Y. Crim. Proc. Law § 300.40(5). However, a court must be cautious when a jury considers two inconsistent charges. A court may send both counts to the jury, but in doing so the court shall "submit both counts in the alternative and authorize the jury to convict upon one or the other depending upon its findings of fact." Id.
In this case, petitioner was charged with inconsistent counts insofar as they required conflicting mental states: manslaughter in the first degree and depraved indifference murder in the second degree. Manslaughter in the first degree requires "intent to cause serious physical injury to another person." N.Y. Penal Law § 125.20(1). Depraved indifference murder does not require an intent aimed at one person, but requires the defendant to have acted with a depraved indifference to human life by creating a circumstance that creates a grave risk of death to another person. N.Y. Penal Law § 125.25(2). As stated above, New York law allows for a defendant to be charged with inconsistent crimes. Therefore, the indictment was not defective for charging both intentional manslaughter and depraved indifference murder. In addition, the trial court instructed the jury to consider the counts in the ...