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Remy Smith v. Sabina Kaplan

April 30, 2012


The opinion of the court was delivered by: John F. Keenan, United States District Judge


Before the court is a petition for habeas corpus filed by Petitioner Remy Smith ("Petitioner" or "Smith") pursuant to 28 U.S.C. § 2254. For the reasons that follow, the petition is denied.


A.The Incident

The following facts are taken from the two-volume Joint Appendix ("J.A."). On July 13, 2007, Smith was celebrating a friend's birthday in the Meatpacking District of Manhattan.

(J.A. 469-70). At the conclusion of the party around 4 a.m., Smith returned to her car and noticed that $3,000 was missing from her purse. She suspected Makeda Joseph ("Joseph"), another partygoer whom she had met only a few times before; Smith knew that Joseph had been carrying the former's purse for much of the evening. Smith sought to confront Joseph, who was in the driver's seat of her car, which was parked on Washington Street between 13th and 14th Streets. (Id. 476-80).

Witnesses told police that Smith approached Joseph's car carrying a gun, and cocked it as she came into Joseph's view. Smith then got in the car and demanded to search Joseph's purse for the $3,000. According to Joseph, a fight ensued and the women's hands flailed, breaking the rear view mirror. During the melee, Joseph stated, Smith shot Joseph in the stomach, then Smith went through Joseph's purse but did not find the $3,000. Joseph further stated that while she was bleeding, Smith fled the scene in her car, which she abandoned after crashing it into a parked car. (Id. 551).

Police arrived on the scene and Joseph was rushed to the hospital where she underwent emergency surgery. Investigators interviewed eyewitnesses, most of whom denied seeing anything. Joseph emerged from surgery the next day and recounted the events of the prior evening to the police, who then identified Smith as a suspect. (Id. 77, 493-95, 519).

Smith was charged with two counts of Assault in the First Degree under N.Y. Penal Law § 120.10(1) (intentionally causing serious physical injury) and § 120.10(4) (causing serious physical injury in the course of a felony), one count of Attempted Coercion in the First degree under N.Y. Penal Law 135.65, and one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03).

B.The Trial

On March 10, 2008, Smith's trial began before Justice Rena K. Ulliver. The State called a crime scene reconstructionist, Officer Paul McLaughlin, who described the gun and how it was used; he also stated that Joseph's bullet wound indicates that she was shot from the passenger side of the car. Officer McLaughlin further noted that, during his interview with Joseph, he showed her his own .45-caliber pistol to aid her in describing the gun Smith had used. Joseph stated that the gun that Smith wielded was "smaller" and "heavier" than Officer McLaughlin's. Officer McLaughlin clarified that when Joseph said Smith's gun was "heavier," she was not referring to actual weight, but the weight she perceived by looking at the gun. (J.A. 125-26, 140-47).

Next, Krystal Bolton, a mutual friend of Joseph and Smith, testified about the events leading up to the shooting. The trial judge had ruled that Bolton would not be permitted to testify to her knowledge that Smith carried a gun in her purse every day, since she had not seen Smith with the gun on the night of the shooting. (Id. 408-12).

Ojudun Oduwole, who attended the party on July 13, testified that he saw Smith exit her own car and walk to Joseph's car, carrying a gun. The defense pointed out that Oduwole first told the police that he was asleep in Bolton's car and did not see the incident. Oduwole also confirmed this story to the prosecutor during their first meeting. He stated that he did not initially talk to the police or the prosecutor because he believed that "what happens on the street should stay on the street." Once he spoke to Joseph and learned that she was cooperating with police, however, he decided to come forward. (Id. 270-77).

Krystal Ricks, another party attendee, testified that she saw Smith get into Joseph's car, but that she did not notice whether Smith was carrying a gun. She stated that she saw the two women "tussling" in Joseph's car and then heard a pop and saw a light. Ricks told the jury that she ran toward Joseph and called 9-1-1 while Smith got in her car and fled. (Id. 241-49).

Finally, Joseph testified about what happened in her car. She stated that she and Smith fought over Joseph's purse and, in the process, dislodged the rear view mirror. As the mirror fell, Joseph turned her head to avoid being hit in the face by it, and she saw a flash of light, breathed in smoke, and realized that Smith had shot her. On cross examination, Joseph admitted that she had ...

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