Opinion
CV-97-2183 (JBW)
May 25, 2000
Judgment, Memorandum, and Order
In 1992, David Aparicio was convicted of robbery in the first degree in violation of N.Y. Penal Law § 160.15(4), and criminal possession of a firearm in the second degree in violation of N.Y. Penal Law § 265.03. Aparicio seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contends that he was denied effective assistance of trial and appellate counsel for failure to raise the issue of double jeopardy and for neither requesting an expanded identification instruction nor challenging the instructions actually given.
I. Facts
A. Crime and Trial
The incidents that gave rise to Aparicio's conviction occurred on January 29, 1991. Early that morning an individual attempted to rob Carlos Medina and to shoot a police officer on a Brooklyn subway train. The State would contend that Aparicio was the perpetrator of these crimes.
At 6:00 a.m., shortly after the events in the subway, David Ramos, a car service driver, was warming up his car at the corner of Court and Huntington Streets in Brooklyn when he was approached by a man with a gun, again allegedly Aparicio. This individual pointed the gun at Ramos, asked if he had any money, and told him to get out of the car and surrender his keys. The gunman then jumped into the car and drove off.
Ramos ran to the car service office a few feet away and notified the dispatcher of the theft. The two men then got into Russo's car and chased after the gunman. He was stuck in traffic a few blocks away. When they pulled up to his car, the thief pointed a gun at them, jumped out of the car, and ran into a nearby house. Shortly thereafter, the police found Aparicio slumped under a board in the back of a house a few doors away and arrested him. Ramos later identified Aparicio in a line-up as the man who had stolen his car.
Aparicio was charged with attempted murder in the first degree and assault in the first degree in connection with the shooting of the police officer; attempted robbery in the first degree regarding Medina; robbery in the first degree based on the Ramos events, and criminal possession of a weapon in the second or, alternatively, third degree. The weapons possession counts only stated that they occurred on January 29, 1991.
Aparicio was convicted of robbery in the first degree, in violation of N.Y. Penal Law § 160.15(4), and criminal possession of a firearm in the second degree in violation of N.Y. Penal Law § 265.03. He was acquitted of the attempted murder charge. The jury was unable to reach a verdict on the attempted robbery of Medina and the assault of the police officer. Aparicio was sentenced to a term of twenty-five years to life on the robbery charge and a concurrent term of eight years to life on the weapons possession charge.
B. Direct Appeal and Collateral Attack
Petitioner raised a number of issues on direct appeal, including a contention that in a trial such as his where identification was the central controversy and the jury was deadlocked on several counts, the court's failure to deliver any identification charge deprived appellant of his right to a fair trial.
The Appellate Division affirmed Aparicio's conviction. See People v. Aparicio, 208 A.D.2d 638 (N.Y. A.D. 1994). The court ruled that Aparicio's claim regarding an identification instruction was unpreserved for appellate review, and, even if it could be raised, the jury charge was adequate. See id. at 638.
Aparicio's petition to appeal to the New York Court of Appeals was denied on December 9, 1994. See People v. Aparicio, 647 N.E.2d 126 (N Y 1994). That same month, Aparicio filed a motion with the Appellate Division requesting permission to reargue his appeal. This motion was denied, and an application to appeal was also denied. See People v. Aparicio, 658 N.E.2d 227 (N.Y. 1995).
In April 1997, Aparicio filed a pro se petition for a federal writ of habeas corpus raising the claims previously presented to the Appellate Division. In November 1998, Aparicio filed a supplemental habeas brief, with the assistance of counsel, claiming that he was denied effective assistance of trial counsel due to the failure to object to the trial court's identification instructions or, alternatively, to ask the trial court to provide a specific instruction on identification. Aparicio also contended that he was denied effective assistance of appellate counsel due to the failure to raise the ineffectiveness of his trial counsel.
The federal court stayed Aparicio's habeas petition pending state court review of the claims raised in his federal habeas petition. That May, Aparicio filed a pro se motion seeking a writ of coram nobis in state court based on the ineffectiveness of trial and appellate counsel regarding the identification charge. In September of that year, Aparicio added to the coram nobis proceeding the claim that trial counsel and appellate counsel were ineffective for failing to raise a claim of double jeopardy based on his convictions for first degree robbery and second degree possession of a firearm. The Appellate Division denied coram nobis relief on October 4, 1999. See People v. Aparicio, 265 A.D.2d 335 (N Y A.D. 1999).
Having exhausted his state remedies, Aparicio renewed his petition in this court. He raises two claims involving ineffective assistance of counsel at both the trial and appellate level based upon the double jeopardy and eyewitness identification issues.
II. Law
To succeed on his claims of ineffective assistance of counsel, Aparicio must show that his counsel's representation was defective and that, but for the counsel's errors, the result of the proceeding would have — or at least, might well have — been different. See Strickland v. Washington, 466 U.S. 668, 669 (1984); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998). As to the first prong of the Strickland test, "courts are instructed to `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy." Jackson, 162 F.3d at 85 (quotingStrickland, 466 U.S. at 689). Despite the presumption of reasonableness, "a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
Aparicio contends that his trial and appellate counsel failed to meet the constitutional minimum by not arguing that his convictions for both robbery and criminal possession of a firearm are barred by the Double Jeopardy Clause and for failing to request a specific instruction on the issue of eyewitness instruction or to object to the instruction that was given. These contentions will be examined in turn.
A. Double Jeopardy
Petitioner's double jeopardy argument relies principally upon the court of appeals for the Second Circuit's decision in Jackson v. Leonardo, 162 F.3d 81 (2d Cir. 1998). In Jackson, the court of appeals granted a habeas petition for a prisoner who had been convicted of robbery in the first degree and criminal use of a firearm in the first degree. The court's decision turned on the New York Court of Appeals decision inPeople v. Brown, 496 N.E.2d 663, 665 (N.Y. 1986) (per curiam) which held that "[w]hen use of or display of a firearm is an element of . . . [robbery in the first degree], the use or display of that same firearm cannot also be the predicate for criminal [use] of a firearm in the first degree." See also Jackson, 162 F.3d at 84. The court held that the failure of Jackson's appellate counsel to raise the double jeopardy issue constituted ineffective assistance. (Because Brown was decided after Jackson's trial but prior to appeal, there was no claim of ineffective assistance of trial counsel.)
Jackson involved a conviction for "criminal use of" a firearm in the first degree (N.Y. Penal Law § 265.09 (emphasis added)), while the instant case involves a conviction for `criminal possession of" a firearm in the second degree (N.Y. Penal Law § 265.03 (emphasis added)). Nothing, however, turns on this distinction because criminal possession of" a weapon in the second degree is also a lesser included offense of robbery in the first degree pursuant to N.Y. Penal Law § 160.15(4) (the provision under which Aparicio was convicted).
Robbery in the first degree requires (1) the forcible stealing of property and (2) "in the course of the commission of the crime or of immediate flight therefrom, he or another participant . . . [d]isplays what appears to be a [firearm]." N.Y. Penal Law § 160.15. The firearm must be loaded because it is an affirmative defense to demonstrate that the weapon was not loaded. See id. 160.15(4). Criminal possession of a weapon in the second degree requires possession of a machine gun, loaded firearm, or disguised gun with the "intent to use the same unlawfully against another." Id. § 265.03.
Any defendant who violates section 160.15(4) will also be in violation of section 265.03 because the display of the firearm as part of a robbery or flight therefrom constitutes an unlawful use of that weapon. Cf. People v. Richardson, 97 A.D.2d 693, 694 (N.Y. A.D. 1983) (finding menacing, harassing, or recklessly endangering an individual constitute unlawful use of a weapon under section 265.03). Every element of criminal possession of a weapon m the second degree is thus also an element of section 160.15(4), making the former crime a lesser included offense of the latter. See Brown v. Ohio, 432 U.S. 161, 166 (1977); Blockburger v. United States, 284 U.S. 299, 304 (1932). Accordingly, the prohibition on double jeopardy precludes convictions for both offense if they involved the same factual predicate. See Blockburger, 284 U.S. at 304; Brown, 496 N.E.2d at 665; see also N.Y. Crim. Proc. Law § 300.40(3) (verdict of guilty on the greatest count is deemed a dismissal of every lesser included count).
The state argues that the two convictions are not in violation of double jeopardy because they do not arise from the same factual predicate. This contention is based upon two alternative theories. While it is clear that Aparicio's robbery conviction was based upon the stealing of Ramos' car, the state argues that the weapons possession conviction was predicated upon either the subway incidents or the confrontation with Ramos and his boss.
The state's first theory — that the robbery and subsequent confrontation could constitute legally distinct events — is simply incorrect. The New York first degree robbery statute covers possession of a loaded firearm both during the commission of a crime and during the "immediate flight therefrom." N.Y. Penal Law § 160.15. Because the subsequent confrontation occurred during the petitioners s immediate flight, the theft and subsequent confrontation constitute a single incident as a matter of New York law. Hence the weapons possession count would be a lesser included offense of the entire car robbery incident.
The state's other theory — distinguishing between the car theft and subway incidents — could avoid the double jeopardy problem. This is because the crime of criminal possession of a weapon in the second degree continues only so long as a defendant possesses the requisite intent, i.e., the intent to use a weapon unlawfully. See People v. Okafore, 527 N.E.2d 245, 248 (N.Y. 1988). Between the subway incidents and the car theft (assuming that Aparicio was involved in both), the unlawful intent clearly lapsed and multiple violations of section 265.03 could have occurred. Accordingly double jeopardy would not preclude a conviction under section 265.03 if the weapons count conviction was predicated upon what occurred on the subway.
The problem with this theory is that it appears to be a post hoc rationalization to avoid the prohibition on double jeopardy. No indication of this temporal distinction was drawn by the state until its response to the present petition. The indictment's description of the second degree weapons possession charge merely states that the crime occurred on January 29, 1991. See, e.g., Exhibit A, Indictment No. 1206/91. The jury charge also failed to provide a specific time for this offense. The court's initial description of the crime was extremely terse:
You will next consider the attempted robbery in the 1St degree as it relates to Carlos Medina, the individual on the train; and then . . ., you will consider the robbery in the 1St degree as it relates to David Ramos. And then . . ., you will consider criminal possession of a weapon in the 2nd degree, and that's possession of the loaded gun with the intent to use it unlawfully against another. . . . If your verdict on the criminal possession of a weapon in the 2nd degree is not guilty, then you will consider criminal possession of a weapon in the 3rd degree.
Jury Charge given by the Honorable Herbert S. Lipp, January 22, 1992, at 450-451. Judge Lipp subsequently provided more details about the elements of criminal possession of a weapon in the second degree, see id. at 467-69, but the instruction again specified no time frame other than that the crime occurred on January 29, 1991.
Thus, while Aparicio could have been convicted on both counts in a manner that did not violate double jeopardy, it is impossible to discern whether this is what occurred at trial. At the very least, it was constitutionally ineffective for trial counsel not to request that the court clearly instinct the jury as to which time frame the weapons possession count involved. No reasonable strategy existed for failing to make such a request. Moreover, the possible prejudice from counsel's failure to require the court to instinct as to when the weapons occurred is obvious. If the jury were told the weapons possession offense occurred during the theft of Ramos' car or its immediate aftermath, the conviction would be vacated because of the double jeopardy violation. If the jury were told it took place on the subway, it is quite likely the jury would not have convicted since it failed to convict Aparicio of any of the crimes arising out of the subway incidents. In addition, it was ineffective for appellate counsel not to raise this issue on appeal. While not on all fours with Jackson, there is no reasonable strategy for failing to raise this claim. See Jackson, 162 F.3d at 85-86.
Finally, even though the sentences for both convictions run concurrently, the petitioner suffered technical prejudice because of counsel's errors. See id. at 86. Consequently, his conviction for criminal possession of a weapon must be vacated. The state may, however, be permitted to retry Aparicio but only under the theory that he committed the weapons possession offense while on the subway. It is not necessary to decide if that trial would constitute double jeopardy in view of the failure to convict on the subway based charges.
B. Witness Identification Charge
Aparicio also contends that his robbery conviction must be vacated because of counsel's failure to object to the omission of a jury charge on identification or to ask the trial court to provide a specific identification charge. This omission, he contends, falls below the constitutional minimum of effective counsel, and because identification was the central issue in this case, this error was prejudicial. Moreover, he argues that because appellate counsel failed to raise trial counsel's ineffectiveness, this too constitutes ineffective assistance.
A jury charge in a state trial "is normally a matter of state law and is not reviewable on federal habeas corpus absent a showing that the alleged errors were so serious as to deprive defendant of a federal constitutional right." United States ex rel. Smith v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974) (citing Cupp v. Naughten, 414 U.S. 141) (1973)); see also Player v. Berry, 785 F. Supp. 339, 343 (E.D.N Y 1992). To constitute such a constitutional deprivation, "it must be established not merely that the instruction [was] undesirable, erroneous, or even `universally condemned' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp, 414 U.S. at 146. As the Supreme Court has explained, "[t]he question in . . . a collateral proceeding is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even universally condemned." Henderson v. Kibbe, 431 U.S. 145, 154 (1977); see also Morales v. Miller, 41 F. Supp. 2 d 364, 377 (E.D.N.Y. 1999) (Gleeson, J.).
The decision not to include an additional eyewitness instruction in the instant case was not even error, let alone so harmful as to rise to the level of a constitutional violation. The court instructed the jury that the evidence had to establish beyond a reasonable doubt that the defendant on trial was the person who committed the crime. See Petitioner's Exhibit E at 417. In addition, the court provided the jury with instructions on evaluating the credibility and weight which should be given to each of the witnesses' testimony. See Petitioner's Exhibit E at 411-417. The jury was provided the proper constitutional standard and well aware of the importance of the identification issue. In fact, Aparicio's counsel spoke extensively about this issue in his summation. Since the instructions in Aparicio's case were proper, his counsel's failure to request a specific identification charge or object to the charge does not constitute ineffective assistance under Strickland. See Player, 785 F. Supp. at 346. For the same reason, the failure of appellate counsel to challenge the effectiveness of trial counsel is also without significance.
III. Conclusion
Aparicio's petition is granted in part and denied in part. The conviction for criminal possession of a firearm in the second degree is vacated. The petition is in all other respects denied. A certificate of appealability is issued on the issue of partial denial.
SO ORDERED.