United States District Court, E.D. New York
MEMORANDUM & ORDER
MARGO K. BRODIE, District Judge.
Petitioner Gary Smith proceeding pro se brings the above-captioned petition pursuant to 28 U.S.C. § 2254, in which he alleges that he is being held in state custody in violation of his federal constitutional rights. Petitioner's claim arises from a June 3, 2008 judgment of conviction after a non-jury trial in New York Supreme Court, Suffolk County, for murder in the second degree and aggravated criminal contempt in the first degree. Petitioner was sentenced to concurrent prison terms of twenty-five years to life for murder in the second degree, and two and one-third to seven years for aggravated criminal contempt in the first degree. Petitioner appealed his conviction to the New York Appellate Division, Second Department, raising two claims: (1) the People presented insufficient evidence that Petitioner intentionally caused the death of another and the verdict was against the weight of the evidence; and (2) his sentence was harsh and excessive. The Appellate Division rejected Petitioner's claims and affirmed his conviction. People v. Smith, 902 N.Y.S.2d 416 (App. Div. 2010). The New York Court of Appeals denied leave to appeal. People v. Smith, 15 N.Y.3d 856 (2010). Petitioner raises both claims in the instant petition. For the reasons set forth below, the petition is denied.
a. March 20, 2004 incident
The evidence at trial established that on March 20, 2004, Petitioner was at his residence, a boarding house at 96 Homestead Drive, Coram, New York ("the house"), where he lived with several other residents including Rosalie Abato ("Abato"). (Retrial Tr. 405:9-406:18, 409:16-410:14.) Petitioner and Abato had previously dated each other, but the relationship was abusive and ended. ( Id. at 406:19-407:11.) Abato's twenty-year-old daughter, Jean Ferdinando, who lived at a different location, was also at the house on March 20, 2004. ( Id. at 409:1-19.) Ferdinando had previously obtained a protective order against Petitioner ordering Petitioner to "refrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats, or any criminal offense against" Ferdinando for one year beginning September 25, 2003. (Trial Tr. Jan. 24, 2005 at 70:3-72:20.)
Abato surmised that Petitioner had been drinking on March 20, 2004 based on "his attitude, his comments, [and] his overall outlook." (Retrial Tr. 424:17-27:1, 435:18-21.) Petitioner harassed Ferdinando that day through several incidents. ( Id. at 409:23-411:7, 416:5-11.) Petitioner put cooking oil in the bath water Ferdinando had prepared for Abato and later turned off the electricity when Ferdinando was showering. ( Id. at 409:23-411:7.) In the mid-afternoon, Ferdinando left the house to attempt to obtain a ride to her home, but returned to the house at approximately 8:00 p.m. with her friend, Anthony Bryson. ( Id. at 411:14-22, 413:19-22.) Bryson got into a fight with Petitioner after Petitioner verbally abused Ferdinando and Abato. ( Id. at 92:11-93:12) Someone called the police and Officer Albert Black was one of the officers dispatched to respond to the fight. ( Id. at 122:6-8.) Officer Black spoke with Petitioner after the fight at approximately 8:16 p.m. ( Id. at 122:9-10, 123:3-9.) Petitioner appeared to be sober during their discussion. ( Id. at 126:13-19.) Bryson also thought that Petitioner was sober. ( Id. at 100:2-9.)
Ferdinando left the boarding house after the fight, but returned at approximately 9:45 p.m. in the evening at Abato's request. ( Id. at 414:13-415:4; Pet'r App. Br. 5.) Petitioner began calling Ferdinando names and Ferdinando told Petitioner she was going to have him arrested. (Retrial Tr. 240:12-24, 415:22-416:11, 417:5-6.) Ferdinando then called the police. ( Id. at 241:5-10.) Petitioner responded by saying, "If I'm going to jail I'm gonna go for something worth it." ( Id. at 417:11-12.) Petitioner then walked out of the room toward his bedroom. ( Id. at 418:19-22.) When Petitioner returned to the room where Ferdinando was still speaking to the police, he said, "Now it's over, " and stabbed Ferdinando. ( Id. at 242:17-19, 244:4-6.) Ferdinando struggled and ran down the hallway, but Petitioner chased her and stabbed her three additional times, once in the chest. ( Id. at 247:8-9, 371:18-372:19.) Ferdinando was eventually able to get into Abato's room and Abato closed the door. ( Id. at 420:16-18.) Abato called 911 and Ferdinando told the operator that Petitioner had stabbed her. (Pet'r App. Br. 6-7.) Ferdinando died early the morning of March 21, 2004, at Mather Hospital as a result of being stabbed in the chest. (Resp't App. Br. 9-10.)
After stabbing Ferdinando, Petitioner encountered Officer Black when he left the house and admitted that he had stabbed Ferdinando. (Retrial Tr. 130:11-24.) Petitioner also told Detective John Jacobsen, "I just stabbed that f____ing bitch." ( Id. at 163:9-10.) During his arrest and questioning, Petitioner did not appear to be intoxicated to Officer Black, Detectives John Jacobsen, William Peeker, Paul Dodorico or Robert Von Schmid. ( Id. at 136:19-21, 176:10-15, 194:19-22, 210:20-24, 356:11-14.) Detective Von Schmid did smell alcohol on Petitioner's breath during his questioning of Petitioner which began at approximately 11:57 p.m. ( Id. at 332:10-12, 336:10-12.)
b. First trial
Petitioner was charged with intentional murder in the second degree, depraved indifference murder in the second degree and aggravated criminal contempt. ( Id. at 4:7-7:15.) Petitioner's first trial was tried to a jury. ( See Trial Tr. Jan. 28, 2005, 51:14-53:25.) During the jury trial, the prosecution called two of Ferdinando's relatives who were at the house at 96 Homestead Drive on the day that Ferdinando was stabbed. (Trial Tr. Jan. 25, 2005 P.M. Session 6:11-13, 7:18-21, 22:7-13, 90:2-3, 91:5-8.) Ferdinando's mother, Abato, testified about the incidents that occurred at the house that day and also testified that she saw Petitioner drinking that day. ( Id. at 22:7-25:23, 38:13-16.) Abato additionally testified that she overheard Ferdinando's 911 call to the police to inform them that Petitioner was stabbing her, and that she observed Ferdinando bleeding when she re-entered Abato's room. ( Id. at 42:12-46:2.) Ferdinando's uncle, Thomas Abato, testified that he saw Petitioner attack Ferdinando and make a stabbing motion, but did not see any knife. ( Id. at 107:21-112:19, 129:25-130:3.) Levie Rose, who also lived at 96 Homestead Drive, testified to hearing Petitioner repeat, "I stabbed her" as Petitioner was walking down the driveway away from the house. (Trial Tr. Jan. 26, 2005, 7:21-23, 11:25-12:23.) Rose also testified that Petitioner seemed to be "under the influence of some kind of alcohol and in a state of shock" and that he had seen Petitioner drinking that day. ( Id. at 23:21-24:10, 27:22-28:9.)
The prosecution played the police calls and called the 911 emergency operators as witnesses to verify that they had received the calls. (Trial Tr. Jan. 24, 2005, 22:13-28:11, 36:4-38:8.) The police officers who responded to the crime scene, the detectives who interviewed Petitioner, and others who helped process and analyze the crime scene also testified. ( See id. at 73:10-74:25; Trial Tr. Jan. 25, 2005 A.M. Session 5:11-6:21, 11:21-13:10, 16:8-12; Trial Tr. Jan. 26, 2005, 44:11-47:2, 50:5-9, 71:14-74:12, 79:13-80:2, 86:11-19, 96:22-98:13, 128:21-131:2, 134:2-24, 142:19-144:25, 146:25-147:2, Trial Tr. Jan. 27, 2005, 22:2-23:21.) Officer Black and Detective Jacobsen both testified that, when they responded to the 911 call, Petitioner admitted that he stabbed Ferdinando. (Trial Tr. Jan. 26, 2005, 50:12-53:22, 77:2-5.) Detectives Jacobsen, Peeker and Von Schmid all testified that Petitioner did not appear to be intoxicated. ( Id. at 85:4-17, 109:17-23; Trial Tr. Jan. 27, 2005, 37:1-3.) Detective Von Schmid testified that he smelled alcohol on Petitioner's breath. (Trial Tr. Jan. 27, 2005, 37:4-5.) Dr. James Wilson performed the autopsy on Ferdinando and testified that Ferdinando died as a result of a stab wound to the chest. ( Id. at 96:24-97:6.)
Petitioner did not testify or otherwise present any evidence. ( Id. at 102:8-13.) Defense counsel sought dismissal of all the charges on the grounds that the prosecutor had failed to establish a prima facie case. ( Id. at 99:21-23.) The trial judge dismissed the depraved indifference murder charge but denied dismissal of the intentional murder and aggravated criminal contempt charges. ( See id. at 99:21-102:16.) Defense counsel requested that the jury be charged on the law for manslaughter in the first degree and manslaughter in the second degree. (Trial Tr. Jan. 28, 2005, 2:7-14.) The court charged the jury with manslaughter in the first degree, but denied the request to charge manslaughter in the second degree as it related to recklessly causing the death of another and the court had previously dismissed the count of depraved indifference murder. ( Id. at 2:14-22, 41:19-43:7.) Defense counsel objected to the judge's failure to charge the jury as to how intoxication can negate the element of intent. ( Id. at 2:25-4:18.) The jury convicted Petitioner of intentional murder in the second degree and aggravated criminal contempt in the first degree. ( Id. at 52:7-13.) Petitioner was sentenced to concurrent prison terms of twenty-five years to life and two and one-third to seven years, respectively, for the two convictions. (Pet'r App. Br. 8.)
c. Appeal of first trial
Petitioner appealed the decision on five grounds: that (1) he was denied a fair trial because the court refused to charge the jury with an intoxication instruction; (2) the trial court erred by refusing to charge the jury with the lesser offense of manslaughter in the second degree; (3) he was denied a fair trial because of the prosecutor's improper remarks during her summation; (4) the prosecutor failed to prove his guilt beyond a reasonable doubt and the verdict was against the weight of the evidence; and (5) the sentence was harsh and excessive. (Pet'r 2005 App. Br. 3.) The Appellate Division found that, "the Supreme Court erred in denying the defendant's request to charge the jury on the defense of intoxication" and reversed the conviction People v. Smith, 840 N.Y.S.2d 824, 825 (App. Div. 2007). The Appellate Division determined that "there is sufficient evidence of intoxication in the record ...