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Tavarez v. Larkin

United States District Court, E.D. New York

May 18, 2014

JOSE TAVAREZ, Petitioner,
v.
ROLAND LARKIN, Superintendent, Respondent.

MEMORANDUM DECISION AND ORDER

BRIAN M. COGAN, District Judge.

Petitioner brings this proceeding for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, after a jury convicted him of manslaughter in the first degree and criminal possession of a weapon in the second degree. Petitioner was sentenced to concurrent prison terms of fifteen years on each count, followed by five years of post-release supervision. For the reasons that follow, the petition is denied.

BACKGROUND

Petitioner fatally shot his girlfriend, Liliana Alvarez, in the head at close range in her bedroom. After the shooting, petitioner awoke the victim's parents and told them to call 911. Petitioner then fled to the Dominican Republic, where he was arrested by Dominican authorities, and then transported back to New York and charged with intentional murder in the second degree. In a post-arrest statement, petitioner explained to police that he had purchased the gun for protection, and that it had discharged by accident when the victim grabbed at him during an argument.

The instant petition relies primarily on two ambiguities in the trial transcript. The first arose at the charge conference. After the court granted defense counsel's request for a charge of criminally negligent homicide, N.Y. Penal Law § 125.10, the prosecutor requested that the trial court also submit first-degree manslaughter, N.Y. Penal Law § 125.20, and second-degree manslaughter, N.Y. Penal Law § 125.15. As relevant here, first-degree manslaughter requires a showing that the defendant's intent was to cause "serious physical injury, " rather than to kill. N.Y. Penal Law § 125.20(1). The court granted the prosecutor's application, and stated that it would charge both levels of manslaughter and criminally negligent homicide, in addition to intentional murder.

At this point, the following colloquy occurred between defense counsel and the trial court:

[Defense Counsel]: So the record is clear, Judge, I do not necessarily agree with the position of the Court. There is a reasonable view of the evidence which would support Man 1 and Man 2. The court concluded as a consequence of Mrs. Pomodore -
THE COURT: Tell me why it shouldn't.

Defense counsel proceeded to argue that for second-degree manslaughter, petitioner must have been "aware of that risk" and "consciously disregard it, " and that petitioner was not consciously aware of the risk that the victim would grab for him and the gun would go off. The court stated that the jury could consider petitioner's statement and "extract from it what it wants to" and that "[e]ssentially I will lecture [the jury] on the law of homicide. I will do it. It's my job. I get paid to do that. My, we go from Murder 1 to Murder 2 to Man 1 to Criminally [negligent homicide]."[1]

On direct appeal, appellate counsel argued that the first-degree manslaughter charge should not have been submitted to the jury as a lesser included offense of the intentional murder count. According to appellate counsel, "no reasonable view of the evidence" supported a finding that, if petitioner acted intentionally, he committed the lesser crime of first-degree manslaughter and not the greater crime second-degree murder. Counsel contended that because the victim was shot in the head at close range, if petitioner fired the gun intentionally, he could not have intended only to cause serious injury and not death.

Appellate counsel further argued that the portion of the transcript excerpted above contained an error: by omitting a word or emphasis, the transcript erroneously reported that defense counsel had conceded that a reasonable view of the evidence supported a charge of firstdegree manslaughter, when actually he had argued to the contrary. The difference is of course significant in terms of whether trial counsel waived or preserved the point of error. Appellate counsel did not, however, use the procedures set forth in New York statutes for amending the transcript of a court proceeding, and instead argued that the Appellate Division should interpret trial counsel's words in their context.

The Appellate Division ruled that petitioner's "claim that the Supreme Court erred in submitting manslaughter in the first degree as a lesser-included offense of murder in the second degree is waived inasmuch as the defendant did not object to the submission of first-degree manslaughter before the jury retired to deliberate." People v. Tavarez, 70 A.D.3d 732, 733, 892 N.Y.S.2d 865 (2d Dep't) (citations omitted), leave to app. den., 14 N.Y.3d 845, 901 N.Y.S.2d 151 (2010) (table). The Appellate Division further held that "[i]n any event, a reasonable view of the evidence supports a finding that the defendant intended to cause serious physical injury rather than death." Id.

Petitioner subsequently brought a pro se coram nobis proceeding, arguing that his appellate lawyer was ineffective for not using the proper procedures to correct the transcript. The Appellate Division denied petitioner's application, stating summarily that "[t]he appellant has failed to establish that he was denied the effective assistance of appellate counsel." People v. Tavarez, 94 A.D.3d 779, 941 N.Y.S.2d 505 (2d Dep't), leave to app. den., 19 N.Y.3d 1001, 951 N.Y.S.2d 478 (2012).

The second ambiguity in the trial transcript occurred when the jury read its verdict. After announcing verdicts of "not guilty" as to second degree murder and "guilty" as to first-degree manslaughter, the clerk asked about the weapon charge. The proceedings were as follows:

THE CLERK: As to the second count of the indictment, Criminal Possession of a Weapon in the Second Degree, how do you find the defendant?
THE FOREPERSON: Not guilty.
THE CLERK: So that we are clear, I will ask you again, as to the second count of the indictment, Criminal Possession of a Weapon in the Second Degree, how do you find the defendant?
THE FOREPERSON: Not guilty.
THE CLERK: Ladies and gentlemen of the jury, listen to the verdict as it stands recorded, Criminal Possession of a Weapon-
THE COURT: Do you want to go back and fill the rest of the box in? Go back and fill it out.
THE JURORS: Yes.
THE COURT OFFICER: ...

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