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Arena v. Perez

United States District Court, E.D. New York

June 19, 2017

VINCENT ARENA, Petitioner,
v.
ADA PEREZ, Superintendent, Downstate Correctional Facility, Respondent.

          MEMORANDUM & ORDER

          PAMELA K. CHEN, United States District Judge.

         Petitioner Vincent Arena (“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction entered on September 29, 2008, in the Supreme Court of the State of New York, Kings County. Following a jury trial, Petitioner was convicted of one count of murder in the second degree, in violation of New York Penal Law § 125.25(3), and one count of falsely reporting an incident, in violation of New York Penal Law § 240.50(1). He was sentenced to an aggregate indeterminate term of 25 years to life in prison. Petitioner contends that his conviction should be vacated as not supported by sufficient evidence. For the reasons stated below, the petition for writ of habeas corpus is denied.

         BACKGROUND

         I. FACTS

         Viewing the facts presented at Petitioner's trial in the light most favorable to the prosecution, United States v. Riggi, 541 F.3d 94, 96 (2d Cir. 2008), a reasonable jury could have found the following.

         On the night of September 4, 2005, Petitioner was playing cards and watching television at a social club in Brooklyn, New York, with his acquaintances John Mirablie, John Fontana, and Matthew Munch. (Trial Tr. (“Tr.”) 266-69 (Munch); Tr. 670 (Fontana).) Petitioner, Fontana, and Mirablie were all drinking beer. (Tr. 268 (Munch).) At some point, Mirablie placed a phone call to a friend of his, Anthony Braccia. (Tr. 669 (Fontana).) At around 3:30 a.m., Braccia and a friend, Antonio Calandra, arrived at the social club. (Tr. 217-20 (Calandra); Tr. 269-70 (Munch); Tr. 671-74 (Fontana).) Braccia was wearing conspicuous and expensive looking jewelry. (Tr. 279-80, 444 (Munch).) Before that night, Petitioner, Munch, and Fontana had never met Braccia or Calandra. (Id.) The six men-Petitioner, Fontana, Munch, Mirablie, Calandra, and Braccia-socialized at the club until around 4:45 a.m., when they decided to drive to a nearby bagel store. (Tr. 217-20 (Calandra); Tr. 269-70, 272, 275-77 (Munch); Tr. 671-74 (Fontana).) The six men rode together in Petitioner's commercial van, which resembled a small school bus, with Munch driving the van and the other five men seated in the back. (Tr. 220-21 (Calandra); Tr. 271-75 (Munch); Tr. 674-75 (Fontana).)

         When the men arrived at the bagel store, everyone went inside except Munch, who stayed with the van. (Tr. 226-27 (Calandra); Tr. 281-82 (Munch); Tr. 678-79, 809 (Fontana).) Petitioner and Fontana were the first to emerge from the store, and, as they approached the van, Petitioner told Fontana that Anthony Braccia was “a jerkoff” who “deserves to get robbed.” (Tr. 284-85, 447 (Munch); Tr. 679-80, 685-86, 809-11, 903, 999 (Fontana).) The other three men returned to the van a few minutes later. (Tr. 284-86, 449-50 (Munch); Tr. 905-07 (Fontana).) Munch then began to drive the men to their respective homes. Munch dropped off Mirablie first and Calandra second, leaving Petitioner, Fontana, and Braccia alone in the back of the van. (Tr. 285-88 (Munch); Tr. 229-30, 254-55 (Calandra); Tr. 688-89, 907-08, 912 (Fontana).) Although Fontana lived down the street from Mirablie, Fontana did not ask to get out of the van when Mirablie was dropped off, choosing instead to stay in the van. (Tr. 908 (Fontana).) Braccia was still wearing his jewelry when Calandra was dropped off. (Tr. 230 (Calandra); Tr. 287 (Munch).)

         As Munch drove the van toward the next drop-off point, Petitioner stabbed Braccia twice with a knife and demanded that Braccia remove his jewelry. (Tr. 691-92, 777-78 (Fontana).) Fontana, referring to the jewelry, told Braccia to “[t]ake it off, just take it off.” (Tr. 290, 292, 471-72 (Munch); Tr. 779 (Fontana).) As Munch continued to drive the van, Petitioner continued to stab Braccia with a knife. (Tr. 780-81 (Fontana).) Fontana was not involved in the attack on Braccia, but, at some point, Braccia forcibly pinned Fontana against the windshield of the van. (Tr. 290-91, 471-74, 476 (Munch); Tr. 781-83, 926-27 (Fontana).) In the course of this physical struggle, Braccia was stabbed thirty times, and his throat was slashed. (Tr. 290-91, 293, 471-72, 477, 483 (Munch); Tr. 785-87 (Fontana).) Braccia died from his wounds in the van, and his blood covered the inside of the van, his clothes, and the clothes of Petitioner and Fontana. (Tr. 295, 478-79 (Munch); Tr. 786-87 (Fontana).) Thereafter, Munch stopped the van, and Petitioner and rolled Braccia's motionless body out of the van and onto the street. (Tr. 296, 492 (Munch); Tr. 787, 790 (Fontana).) Braccia's body was found later that morning, without any of the jewelry Braccia had been wearing the night before. (Tr. 138 (Gangi).)

         After dumping Braccia's body, Petitioner, Fontana, and Munch attempted to conceal their involvement in Braccia's death. The three men changed out of their bloodied clothing and attempted to clean the bloodstains on the inside of Petitioner's van. (Tr. 297-302, 306-12 (Munch); Tr. 788-90 (Fontana).) When their attempts to remove the bloodstains from the van failed, Petitioner told Munch to abandon the van on the outskirts of Brooklyn. (Tr. 314-16 (Munch).) Petitioner then reported the van as stolen. (Tr. 594-97 (Maldonado).)[1]

         In September 2006, after a year-long investigation, New York City Police Department officers arrested Petitioner, Munch, and Fontana in connection with Braccia's death. (Tr. 1295-97, 1339-40 (Det. Yero).) Petitioner was charged with first degree murder, second degree murder, falsely reporting an incident in the third degree, and related counts. (Dkt. 4 ¶ 6.) Fontana was charged with felony murder and robbery. (Tr. 799 (Fontana).) In March 2008, Fontana and Munch entered guilty pleas pursuant to cooperation agreements with the government; Fontana and Munch each pled guilty to hindering prosecution, in satisfaction of all charges against them. (Tr. 352-53 (Munch); Tr. 799, 805 (Fontana).)

         II. TRIAL, VERDICT AND SENTENCING

         Petitioner was tried before a jury in April 2008 in the Supreme Court of the State of New York, Kings County. (Dkt. 1 ¶ 6.) The government's main witnesses against Petitioner were Fontana and Munch, both of whom testified pursuant to their cooperation agreements. (Tr. 352-53 (Munch); Tr. 799, 805 (Fontana).) As first-hand witnesses to Braccia's death, Fontana and Munch testified that Petitioner was Braccia's sole assailant and responsible for Braccia's death, as set forth in the Facts section above. The government also introduced forensic evidence, including an autopsy report showing that Braccia's body had thirty stab wounds and a slashed jugular vein. (Tr. 1434-35, 1444-45 (Dr. Roman).) The medical examiner who testified at trial could not determine the order in which the wounds were inflicted, nor could she determine how many assailants had stabbed Braccia. (Tr. 1435-39 (Dr. Roman).) The medical and forensic evidence was inconclusive as to whether Braccia had been stabbed by single knife or two different knives. (Id.) The forensic evidence was also inconclusive as to whether Braccia had been stabbed by a single person or by multiple people. (Id.)

         Petitioner did not testify at trial, but the defense called one of Petitioner's friends, Nikola Russo, to testify as part of Petitioner's defense. Russo described a conversation between himself and Munch during which Munch told Russo that, a couple months earlier, Fontana had gotten into a fight in a van and stabbed someone. (Tr. 1490 (Russo).) According to Russo, Munch told Russo to keep that information confidential. (Id.)

         In the government's closing argument, the prosecutor asked the jury to find Petitioner guilty of murder in the first degree, felony murder in the second degree, and false reporting of an incident. (Tr. 1741-42.) With respect to the count for felony murder in particular, the prosecutor urged the jury to find Petitioner guilty based on the theory that Braccia was killed in the course of Petitioner and Fontana acting in concert to rob Braccia. (Id.) The prosecutor did not expressly argue in closing that the jury should find Petitioner guilty of felony murder based on Petitioner's own personal acts that caused Braccia's death in the course of robbing him. (Id.)[2]

         In its charges to the jury, the trial court stated the elements of the criminal counts against Petitioner. (Dkt. 4 at ECF[3] 23-24.) With respect to the count for felony murder, the trial court did not limit its instructions to the “acting in concert” theory that the prosecution had emphasized in its closing argument. (Id.) Instead, the trial court instructed the jury that each element of felony murder could be satisfied either by Petitioner's “personal” actions or by Fontana's actions to the extent the jury found that Petitioner was “acting in concert with Fontana.” (Id.)

         The jury found Petitioner not guilty of murder in the first degree, but guilty of felony murder in the second degree and falsely reporting an incident. (Dkt. 4 ¶ 7.) With respect to the count for felony murder, the jury's general verdict did not indicate whether the jury believed that Petitioner “personally” caused Braccia's death, or believed that it was Fontana who caused Braccia's death, with Petitioner merely “acting in concert” with Fontana to rob Braccia. (Id.) On September 29, 2008, Petitioner was sentenced to concurrent prison terms of twenty-five years to life on the felony murder count and one year on the false reporting count. (Dkt. 4 ¶ 8.)

         III. EXHAUSTION ...


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