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finding no habeas relief warranted where state court permitted the prosecutor to display disabled victim to jury because "the extent of the victim's injuries was clearly relevant. In order to prove Attempted Murder in the Second Degree, the prosecution was obligated to establish that the petitioner intended to cause Mr. Smith's death, . . . and the objective results of the beating administered by Mr. Franco were evidence from which the jury could infer such intent."
Summary of this case from Guerrero v. PayantOpinion
00 Civ. 8930 (AGS)(JCF)
April 17, 2002
REPORT AND RECOMMENDATION
Juan Carlos Franco brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, Bronx County, for attempted murder and robbery. Mr. Franco argues: (1) that there was insufficient evidence to prove him guilty of robbery beyond a reasonable doubt; (2) that the trial court's charge on robbery was inadequate; (3) that the court deprived him of a fair trial by allowing the victim to be displayed to the jury; and (4) that he was given ineffective assistance by appellate counsel, who failed to argue that trial counsel had been inadequate in a number of respects. For the reasons set forth below, I recommend that the petition be denied.
Background
On the evening of March 4, 1993, Michael Smith was trying to sell a leather jacket in the vicinity of 900 Bronx Park South in the Bronx. (Tr. 378-82, 508). In the lobby of that apartment building, Mr. Franco was drinking beer with Theodore Simpson, Cesar Martinez, and others. (Tr. 838-43). Mr. Simpson complained to James Venson about Mr. Smith's peddling, saying "I'll fuck him up, if he keeps selling that shit." (Tr. 852). Some time later, Mr. Venson encountered Mr. Smith on the street and warned him of the threat. (Tr. 869-70).
"Tr." refers to the trial transcript.
Close to midnight, Mr. Smith apparently entered 900 Bronx Park South, trying to sell the jacket. A tenant, Julio Santiago, heard Mr. Simpson say, "Let's kill him right here." (Tr. 1276-77). Looking from his window into the courtyard in front of the building, Mr. Santiago saw Mr. Smith lying on the ground being beaten by Mr. Franco, Mr. Simpson, and Mr. Martinez. (Tr. 1281-84, 1289-90). Mr. Franco kicked the victim's body "like a football" while Mr. Martinez stomped on his head. (Tr. 1280-84).
Nelson Camacho also witnessed the beating. When he entered the courtyard of 900 Bronx Park South shortly after midnight, he saw Mr. Franco, Mr. Simpson, and Mr. Martinez dragging Mr. Smith's body out of the building. (Tr. 478, 485, 525, 530-31, 542, 545, 613-15, 693-94). Mr. Smith was face-up, and Mr. Franco was holding the victim's feet while Mr. Martinez held the top of his shirt and the perpetrators kicked and stomped Mr. Smith. (Tr. 478, 653-54). At one point, the assailants lost their grip and the victim's head hit the ground. (Tr. 478-79). When Mr. Camacho asked what had happened, the petitioner replied, "We just beat this nigger up." (Tr. 485, 645-46).
Between 12:15 and 12:25 a.m., Carlos Ortiz arrived at the building and found the courtyard empty except for Mr. Smith's body. (Tr. 129-31, 200-01). The jacket that the victim had been trying to sell was lying on the ground a few feet away. (Tr. 130, 133). After trying unsuccessfully to rouse Mr. Smith, Mr. Ortiz went to call the police, but they arrived before he made the call. (Tr. 130).
Emergency Medical Services arrived at approximately 12:50 a.m. and transported Mr. Smith to Jacobi Hospital. (Tr. 57-59, 71). Due to blunt trauma injury, he remained in a prolonged coma. (Tr. 1540). After being released from Jacobi Hospital on June 22, 1993, he was transferred to a variety of hospitals and nursing homes for rehabilitation and treatment of secondary conditions such as pneumonia and severe weight loss. (Tr. 1546-58, 1573).
As a result of the beating, Mr. Smith suffered brain damage that rendered him a permanent bilateral hemiplegic. He cannot move his arms or legs or speak. (Tr. 1558, 1594). He can communicate only sporadically by blinking and is sometimes able to follow an object with his eyes. (Tr. 1585, 1587). He cannot swallow, has no urinary control, and has a permanent tracheotomy. (Tr. 1587-89).
Following the beating, Mr. Franco admitted his role to at least two witnesses. On the morning after the incident, he told Nick Quinones that Mr. Smith had "disrespected" him by trying to sell him a torn jacket for too much money. After the petitioner taunted the victim about the jacket, Mr. Smith wanted to leave without it, but Mr. Franco hit him in the back of the head with a beer bottle, punched him in the face, and dragged him outside. When Mr. Franco tried to pull Mr. Smith, who was unconscious, to his feet, the victim's head hit the lobby steps. Mr. Franco said he then beat Mr. Smith in the building courtyard. (Tr. 381-85). After that, Mr. Franco removed a bottle and broken glass from the courtyard because he was nervous about leaving his fingerprints. (Tr. 383).
Shortly after noon on the same day, Mr. Camacho was selling drugs on the street when the petitioner arrived, along with Mr. Simpson and Mr. Martinez. (Tr. 504-05). Mr. Camacho asked Mr. Franco what had happened the night before. The petitioner replied that Mr. Smith had tried to sell him a jacket with a hole in it. Mr. Franco asked why Mr. Smith was trying to sell him "some bullshit jacket like this," and said he was not going to give the jacket back. When the victim asked for the jacket, Mr. Franco refused and told him to "get out of his face" and leave the building. When Mr. Smith continued to ask for the jacket, Mr. Franco hit him in the head with the beer bottle. When the victim fell, the petitioner kicked and beat him and dragged him out to the courtyard. According to Mr. Franco, while he was dragging Mr. Smith, the victim's head hit the steps. (Tr. 507-09, 512-13).
After the attack, the police were initially unable to obtain any leads. More than two years later, Mr. Smith's mother began to receive information in response to fliers that she posted at 900 Bronx Park South. (Tr. 1510-14). Then, when Mr. Camacho was arrested for the sale of narcotics, he told the police what he knew about the beating. (Tr. 567-71).
Mr. Franco was indicted along with Mr. Martinez and Mr. Simpson on November 27, 1995. On April 6, 1998, following a jury trial before Justice Robert Straus, the petitioner was convicted of Attempted Murder in the First Degree, N.Y. Penal Law §§ 110 and 125.25(1); two counts of Robbery in the First Degree, N.Y. Penal Law § 160.15(1) and (3); and Robbery in the Second Degree, N.Y. Penal Law § 160.10(1). Mr. Franco was sentenced to eight and one-third to twenty-five years imprisonment for the attempted murder and first degree robbery convictions and five to fifteen years for second degree robbery. The sentences for robbery are concurrent to each other but consecutive to the sentence for attempted murder. In addition, all of these sentences are consecutive to a sentence of twenty-five years to life previously imposed on Mr. Franco in a separate case for a conviction for second degree murder.
The petitioner appealed his conviction to the Appellate Division, First Department, arguing that: (1) there was insufficient evidence to support a conviction for robbery; (2) Justice Straus failed to give complete jury instructions on that charge; (3) the court denied him a fair trial by allowing the victim to be displayed to the jury; and (4) all of the sentences should have been imposed to run concurrently. (Affidavit of Karen Swiger dated Dec. 11, 2001("Swiger Aff."), Exh. 1). On March 23, 2000, the Appellate Division affirmed in all respects. People v. Franco, 270 A.D.2d 160, 707 N.Y.S.2d 4 (1st Dep't 2000). It held that the evidence on the robbery counts was sufficient and that the trial court properly exercised its discretion in permitting the prosecution to display the victim to the jury. Further, the Appellate Division found that the petitioner's challenge to the jury charge was unpreserved and also without merit. Finally, it rejected the argument concerning sentencing. On July 14, 2000, the New York Court of Appeals denied Mr. Franco's application for leave to appeal. People v. Franco, 95 N.Y.2d 852, 714 N.Y.S.2d 3 (2000).
On December 7, 2000, the petitioner submitted to the Appellate Division a motion for a writ of error coram nobis. In this motion, he argued that his appellate counsel had been ineffective in that: (1) she raised unpreserved issues on appeal; (2) she failed to argue that the indictment was defective; and (3) she failed to argue that trial counsel had been ineffective. (Swiger Aff., Exh. 4). The Appellate Division denied this motion on June 28, 2001. (Swiger Aff., Exh. 7).
Mr. Franco then filed the instant petition for a writ of habeas corpus.
Discussion
A. Sufficiency of the Evidence
The standard for habeas corpus review of the sufficiency if the evidence is well-settled. There is a "very heavy burden placed upon a defendant challenging the sufficiency of the evidence underlying his conviction." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995) (internal quotations and citation omitted). "To succeed, [the petitioner] must demonstrate that viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Id. at 178 (internal quotations and citations omitted); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Mr. Franco contends that the prosecution failed to prove the element of larcenous intent with respect to the conviction for robbery. Robbery is defined under New York law as follows:
Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.
N Y Penal Law § 160.00. Larceny, in turn, is defined as follows:
A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.
N Y Penal Law § 155.05(1). Finally, the terms "deprive" and "appropriate" imply an intent on the part of the accused to exercise permanent or extended control over the property. People v. Jennings, 69 N.Y.2d 103, 118, 512 N.Y.S.2d 652, 659 (1986).
Here, the property at issue was the leather jacket. Mr. Franco does not assert any right to the jacket, nor does he deny that he obtained it by force. Rather, he contends that there was no evidence that he intended to possess it permanently. To the contrary, the petitioner alleges that he only intended to use it to taunt Mr. Smith as demonstrated by the fact that he left it next to the victim.
The respondent answers this argument by stating that "[i]n New York State, the intent element of larceny `is satisfied by a showing that the thief exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights [citations omitted].' People v. Jennings, 69 N.Y.2d 103, 118 (1986)." (Respondent's Memorandum of Law at 27). This is a serious misrepresentation of the holding in Jennings. In that case, the New York Court of Appeals distinguished between the element of taking and the element of larcenous intent. The complete sentence from which the respondent excised one portion reads as follows:
The intent element of larceny is therefore very different in concept from the "taking" element, which is separately defined in the statute and is satisfied by a showing that the thief exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights.
Id. at 118, 512 N.Y.S.2d at 659 (citations omitted). Thus, temporary dominion may satisfy the taking requirement, but it does not by itself demonstrate larcenous intent. Indeed, the Jennings court went on to hold that "[t]he mens rea element of larceny . . . is simply not satisfied by an intent temporarily to use property without the owner's permission, or even an intent to appropriate outright the benefits of the property's short-term use." Id. at 119, 512 N.Y.S.2d at 660.
Nevertheless, there was sufficient evidence in this case to convict Mr. Franco of robbery. Mr. Camacho testified that the petitioner had admitted refusing to return the jacket to Mr. Smith and ordering him to leave without it. When the victim continued to demand the jacket, Mr. Franco hit him with a beer bottle. From this evidence the jury was surely entitled to infer the petitioner's intent to keep the jacket. In that respect, this case is similar to In re Yiell C., 253 A.D.2d 718, 679 N.Y.S.2d 364 (1st Dep't 1998), in which the defendant was convicted of stealing a beeper. In that case, the court noted that the defendant's "intent to appropriate the beeper from the complainant was adequately demonstrated by his stated demand that the complainant turn it over, a demand lacking any non-larcenous explanation." Id. at 719, 679 N.Y.S.2d at 364. Here, too, the jury could infer Mr. Franco's intent from his own words.
Moreover, this evidence of intent is not nullified by the fact that the petitioner then abandoned the property he had stolen. See id., 679 N.Y.S.2d at 364. "Whether the subsequent return of the [property] negates a finding of intent `to deprive' or `to appropriate' the property is a question of fact for the petit jury." People v. Smith, 140 A.D.2d 259, 261, 528 N.Y.S.2d 562, 564 (1st Dep't 1988) (citations omitted). In this case the jury was entitled to resolve that question against Mr. Franco.
B. Jury Charge
The petitioner next contends that the trial court deprived him of his rights to due process and a fair trial by failing to define "deprive" and "appropriate" when instructing the jury on the robbery charges. Justice Straus defined robbery as forcible stealing. (Tr. 2129). He then elaborated by stating in part that "a person steals property and therefore commits larceny or theft when with the intent to deprive another person of property or to appropriate the property to himself he wrongfully takes, obtains or withholds such property from an owner of it." (Tr. 2130-31). The relevant section of the New York Penal Law defines "deprive" as follows:
To "deprive" another of property means (a) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him, or (b) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.
N Y Penal Law § 155.00(3). Similarly, "appropriate" is defined as follows:
To "appropriate" property of another to oneself or a third person means (a) to exercise control over it, or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (b) to dispose of the property for the benefit of oneself or a third person.
N Y Penal Law § 155.00(4). According to Mr. Franco, these definitions were important because they would have highlighted to the jury the fact that his possession of Mr. Smith's jacket was only temporary and therefore did not evince larcenous intent. But Justice Straus did not include this language in his charge and the petitioner's attorney did not object. (Tr. 2169-75).
Mr. Franco did, however, raise the issue in his direct appeal. The Appellate Division rejected his claim, stating, "Defendant's challenge to the court's definition of robbery in its jury instructions is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the charge sufficiently explained the requisite intent." People v. Franco, 270 A.D.2d at 160, 707 N YS.2d at 6.
"Generally, federal habeas review of federal claims is barred `if a petitioner defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule.'" Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Nevertheless, "procedural default in the state court will only bar federal habeas review when `the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.'" Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996) (quoting Harris v. Reed, 489 U.S. 255, 263 (1989)). That was the case here. The Appellate Division's decision explicitly relied on the petitioner's failure to preserve his challenge to the charge. Moreover, this default forecloses habeas review even though the court alluded to the merits of the claim. See Glenn, 98 F.3d at 724; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
The Appellate Division's ruling was based on a state procedural rule and therefore independent of the federal constitutional claim. It was also adequate. Pursuant to New York Criminal Procedure Law ("CPL"),
For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.
CPL § 470.05(2). Thus, the failure to preserve an issue as required by state law results in a procedural default. Jones, 126 F.3d at 414-15.
Mr. Franco may be relieved of this default only if he demonstrates "cause for the default and actual prejudice" or he shows that "failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991); Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001). The only "cause" that Mr. Franco hints at is that his trial attorney was ineffective for failing to object to the charge. However, while "[i]neffective assistance of counsel . . . is cause for procedural default," "the exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Murray v. Carrier, 477 U.S. 478, 488-89 (1986). Since the petitioner here has never asserted such an ineffective assistance of trial counsel claim in state court, he may not now rely on it as cause for his procedural default. Nor has Mr. Franco alleged that failure to consider his challenge to the jury charge will result in a miscarriage of justice such as the conviction of one who is actually innocent. See Aparicio, 269 F.3d at 90. Accordingly, this claim should be denied.
The petitioner makes this argument as part of his claim of ineffective appellate counsel, which will be discussed below, but not explicitly in connection with the substantive jury charge claim.
C. Display of the Victim
The petitioner also argues that he was denied his rights to due process and a fair trial when Justice Straus permitted the prosecutor to display the disabled victim to the jury. When the prosecution suggested that Mr. Smith would be brought into the courtroom during the testimony of the state's medical expert, defense counsel objected, arguing that "for him to be displayed, when the district attorney has already indicated that he cannot meaningfully communicate, just to display him would be absolutely unnecessary and clearly have one purpose and one purpose only and that is to inflame the jury." (Tr. 1520-21). The court rejected this contention, holding:
The law provides, as I understand it, that exhibition of injuries are [sic] allowed in all cases where the question in issue is the nature and extent of the injuries. That's the basic rule. Even — even where to exhibit injuries themselves from the victim himself or herself would tend to excite sympathy, that doesn't exclude it.
The sole purpose that the People offer this display for is not to arouse the emotions of the jury and thereby prejudice the defendants, but in effect to demonstrate the seriousness of the injuries which is an issue at trial and which is an element of certain crimes alleged.
(Tr. 1524).
On appeal, the Appellate Division agreed. It found:
The court properly exercised its discretion in permitting the People to exhibit before the jury the victim, who had sustained catastrophic injuries during the incident and who was unable to testify. After the court delivered thorough instructions in order to prepare the jury, the victim was brought into the courtroom during the testimony of the People's medical expert, who made use of the victim's presence for purposes of illustration and to conduct several demonstrations establishing the victim's condition. The display of the victim was relevant to issues raised at trial and was not conducted simply for its inflammatory effect. Defendant made no concessions concerning the victim's injuries and the cross-examination of the medical expert prior to the display of the victim raised questions as to causation. In any event, the exhibition of the victim could not have deprived defendant of a fair trial in view of the overwhelming evidence of his guilt.
People v. Franco, 270 A.D.2d at 160, 707 N.Y.S.2d at 5-6 (citations omitted).
In order to warrant habeas relief, the admission of prejudicial evidence must have been not merely erroneous, but sufficiently egregious to rise to the level of a constitutional error. See Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983); Crawford v. Artuz, 165 F. Supp.2d 627, 635 (S.D.N.Y. 2001); Diaz v. Greiner, 110 F. Supp.2d 225, 234 (S.D.N.Y. 2000). "The introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence `is so extremely unfair that its admission violates fundamental conceptions of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)).
Under New York law, demonstrative or physical evidence is generally admissible if it tends "to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered." People v. Pobliner, 32 N.Y.2d 356, 369, 345 N.Y.S.2d 482, 493 (1973) (citations omitted). Accordingly, "[a]dmission of photographs of homicide victims is generally within the discretion of the trial court," and "[w]here they are otherwise properly admitted as having a tendency to prove or disprove some material fact in issue, photographs of a corpse are admissible even though they portray a gruesome spectacle and may tend to arouse passion and resentment against the defendant in the minds of the jury." Id. at 369-70, 345 N.Y.S.2d at 493 (citations and internal quotations omitted). As a consequence, "[p]hotographic evidence should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant." Id. at 370, 345 N.Y.S.2d at 493; see also Rivera v. Scully, No. 92 Civ. 6659, 1993 WL 454209, at *4 (S.D.N.Y. Nov. 2, 1993), aff'd, 40 F.3d 1237 (2d Cir. 1994); People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 993-94 (1992); People v. Stevens, 76 N.Y.2d 833, 836, 560 N.Y.S.2d 119, 120-21 (1990). The same reasoning applies to display of the victim himself as it does to photographs.
In this case, the extent of the victim's injuries was clearly relevant. In order to prove Attempted Murder in the Second Degree, the prosecution was obligated to establish that the petitioner intended to cause Mr. Smith's death, see N Y Penal Law § 125.25(1); Tr. 2124 (jury charge), and the objective results of the beating administered by Mr. Franco were evidence from which the jury could infer such intent. Moreover, the fact that Mr. Smith's injuries were described by the prosecution's medical expert does not preclude the prosecution from displaying the victim himself to the jury. See Stevens, 76 N.Y.2d at 836, 560 N.Y.S.2d at 121 ("The People were not bound to rely entirely on the testimony of the medical expert to prove [intent to inflict serious injury] and the photographs [of the victim's corpse] were admissible to elucidate and corroborate that testimony.").
Permitting Mr. Smith to appear in court, then, was not erroneous under state evidentiary principles. Nor did it violate Mr. Franco's constitutional rights. "Where the prejudicial evidence is `probative of [an] essential element' in the case, its admission does not violate the defendant's right to due process." Dunnigan, 137 F.3d at 125 (quoting Estelle v. McGuire, 502 U.S. 62, 69 (1991)). As discussed above, that was the case here. Furthermore, even if presenting the victim had been improper, it would not have been a constitutional violation unless it was "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Id. (quoting Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992)). But, apart from the display of Mr. Smith, there was substantial evidence both of his condition and of the circumstances of the assault — all of which provided a basis for inferring the requisite intent. Accordingly, the challenged procedure, even if erroneous, was not sufficiently material to constitute a due process violation.
Finally, Justice Straus took reasonable steps to minimize whatever prejudice there might have been. Prior to bringing Mr. Smith into the courtroom, he gave the jury cautionary instructions, noting that the victim's presence was relevant to illustrate the medical expert's testimony and reminding the jury to deal with the evidence without emotion. (Tr. 1600-02). Although a member of the audience apparently cried out and had to be escorted from the courtroom when Mr. Smith was brought in, Justice Straus noted that the interruption was brief and no comments were directed at any participant in the trial. (Tr. 1661-64). The display of the victim, then, did not violate the petitioner's rights.
D. Effectiveness of Appellate Counsel
Mr. Franco raises a series of claims of ineffective assistance of appellate counsel. He contends that counsel improperly relied on issues that were unpreserved for review. (Petition at 26). In the same vein, he maintains that his appellate attorney should have asserted that trial counsel was ineffective for failing to object to the jury charge on robbery, thereby forfeiting the right to raise this issue on appeal. (Petition at 29-30; Affidavit in Support of Writ Error [sic] Coram Nobis ("Coram Nobis") at 4, 7, attached as Exh. 4 to Swiger Aff.). Mr. Franco further argues that on appeal his attorney should have contended that trial counsel was ineffective for failing to adequately cross-examine the prosecution's medical expert and for failing to concede causation with respect to the victim's injuries. (Petition at 29-30; Coram Nobis at 7). Finally, the petitioner claims that appellate counsel should have argued that the trial attorney was ineffective when he did not challenge the indictment as defective because it was unsigned and because it failed to clearly identify the petitioner as being accused under each count. (Petition at 28-29, 32-37; Coram Nobis at 8-9, 12).
In some cases, these claims are asserted in conclusory fashion in his habeas corpus petition. In those instances, in order to give Mr. Franco the benefit of the doubt, I have incorporated the more expansive arguments he raised in his coram nobis petition in state court.
In order to obtain the reversal of a conviction due to ineffective assistance of counsel, the petitioner must demonstrate that (1) counsel's performance was deficient, and (2) the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). This standard also applies to assistance of appellate counsel. See Jackson v. Leonardo, 162 F.3d 81, 84-85 (2d Cir. 1998); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Lawrence v. Artuz, 91 F. Supp.2d 528, 539 (E.D.N.Y. 2000).
Counsel is not obliged to identify every possible error in the record or to "raise every nonfrivolous issue that the defendant requests." Jones v. Barnes, 463 U.S. 745, 754 n. 7 (1983); see also Jackson, 162 F.3d at 85. Also, there is a "strong presumption of attorney competence," and the court's standard of review of an appellate counsel's performance is "highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381, 383 (1986). Moreover, a reviewing court should not second guess reasonable professional judgments made by appellate counsel. See Jones, 463 U.S. at 754; Jackson, 162 F.3d at 85; Mayo, 13 F.3d at 533; Cantone v. Superintendent, New York Correctional Facility, 759 F.2d 207, 218 (2d Cir. 1985); Avincola v. Stinson, 60 F. Supp.2d 133, 147 (S.D.N.Y. 1999). For an appellate attorney to be found ineffective for failing to raise certain issues, the court must determine that "significant and obvious" issues were abandoned while "clearly and significantly weaker" issues were pursued. Mayo, 13 F.3d at 533. With this standard in mind, each of Mr. Franco's claims of ineffective assistance can be analyzed.
1. Assertion of Unpreserved Issues
The petitioner's claim that appellate counsel improperly asserted unpreserved issues fails both because the attorney's performance was not deficient and because Mr. Franco was not prejudiced. Although the petitioner neglects to identify what unpreserved claim was raised on appeal, it is apparent that he is referring to the argument that the trial court's jury charge on robbery was flawed. It was within the discretion of the Appellate Division to review this issue on the merits in the interest of justice notwithstanding the absence of any objection at trial. CPL § 470.15(6)(a); People v. Little, 215 A.D.2d 778, 779, 627 N.Y.S.2d 416, 417 (2d Dep't 1995); People v. Holmes, 215 A.D.2d 163, 165, 626 N.Y.S.2d 154, 155 (1st Dep't 1995). Thus, counsel's effort to obtain consideration of the claim was hardly quixotic.
Moreover, even if this claim was doomed from the beginning, Mr. Franco has not suggested how he might have been prejudiced. To be sure, the presentation of meritless claims in place of claims with more substance can constitute ineffective assistance, but, as will be discussed below, none of the issues that the petitioner now believes should have been raised had any apparent merit.
2. Failure to Object to Jury Instructions
Mr. Franco also argues that appellate counsel's performance was deficient because she neglected to argue that trial counsel was ineffective for failing to object to the jury instructions on robbery — specifically, the trial court's omission of any definition of "deprive" or "appropriate." This claim fails because the decision to forego any objection was entirely consistent with trial counsel's overall strategy.
As illustrated by his summation, Mr. Franco's trial attorney sought to undermine the credibility of each of the prosecution witnesses. (Tr. 1899-1950). Had he been successful, the jury might have found Mr. Franco not guilty on all charges. Emphasizing the issue of whether Mr. Franco had the requisite intent to commit larceny would have undercut his strategy. First, it would have distracted the jury from the broader credibility questions. More specifically, it would have endorsed, at least implicitly, the story of Nick Quinones, whose testimony supported the petitioner's claim that he was merely taunting Mr. Smith with the jacket. (Tr. 382). But bolstering Mr. Quinone's credibility would have been counterproductive since he also testified to admissions that Mr. Franco made about his involvement in the assault. (Tr. 382, 384-86). It was therefore entirely rational for trial counsel to accept the court's charge on robbery rather than compromise a strategy that was directed at attacking the more serious attempted murder charges as well. Accordingly, appellate counsel exercised appropriate professional judgment in declining to raise a claim of ineffective assistance of trial counsel on this basis.
The first thirteen pages of the summation are missing from the trial transcript. Nevertheless, the thrust of counsel's strategy is evident from the balance of the argument, which covers thirty-seven more pages.
3. Failure to Cross-Examine Medical Expert or Concede Causation
Next, Mr. Franco contends that appellate counsel should have argued that the trial attorney's cross-examination of the prosecution's medical expert was inadequate and that the failure to concede causation opened the door to the display of the victim to the jury. Neither claim has merit. Trial counsel did indeed cross-examine the medical expert, Dr. Steven Flanagan, about the causes of Mr. Smith's condition. (Tr. 1638-42). This followed similar questioning by counsel for Mr. Franco's co-defendants. (Tr. 1607-38). It was both factually and legally appropriate for counsel to focus on this issue. Since Mr. Smith had been transferred between medical facilities more than thirty times (Tr. 1507-09), it could certainly be maintained that his condition was caused at least in part by inappropriate care. And, to the extent that this could be demonstrated, counsel could argue that any injuries caused directly by the assault were not serious enough to support a charge of attempted murder. Mr. Franco's attorney thus chose an appropriate focus for his cross-examination, and the petitioner has failed to suggest what other avenues of inquiry might have been more fruitful.
Mr. Franco does argue that trial counsel should have conceded causation altogether, thus foreclosing the prosecution from one argument supporting the presentation of the victim to the jury. This contention, too, is flawed. Even if causation were conceded, the severity of Mr. Smith's injuries would still have been relevant, since it would allow the jury to infer the perpetrators' intent. And, as discussed above, the prosecution was not required to rely exclusively on the description provided by Dr. Flanagan or other witnesses. Thus, a concession as to causation would not likely have prevented the prejudice that the petitioner alleges from the display of the victim. Accordingly, trial counsel's performance was not deficient in this regard, nor was appellate counsel ineffective for failing to argue that it was.
4. Failure to Challenge the Indictment
Finally, Mr. Franco maintains that trial counsel erred in failing to challenge the indictment and that appellate counsel should have raised this argument. First, the petitioner asserts that the indictment was unsigned by the jury foreperson and was therefore a nullity. This claim has no basis in fact. While Mr. Franco may have been provided with an unsigned copy of the indictment, the original bears the foreperson's signature. (Swiger Aff., Exh. 8). See People v. Cooper, 241 A.D.2d 553, 553, 661 N.Y.S.2d 243, 244 (2d Dep't 1997) (signature of grand jury foreperson on filed indictment sufficient). Certainly, trial counsel had no obligation to assert a factually unsupported claim.
Second, the petitioner argues that the indictment did not specifically identify him in each of the counts. He was, however, named in the caption as one of the three defendants, and each of the counts charges that "the defendants, acting in concert with each other," committed the specified crime. (Swiger Aff., Exh. 8). This satisfies the requirement that the indictment contain
[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature . . . asserts facts supporting every element of the offense charged and the defendant's or defendants' commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation[.]
CPL § 200.50(7)(a). See Downey v. Hale, 67 F.2d 208, 208 (1st Cir. 1933) (indictment naming defendants only in caption and identifying them in body as "said defendants" sufficient under predecessor section to CPL § 200.50). Again, then, trial counsel was not ineffective for failing to raise this claim, nor was appellate counsel's performance deficient for declining to assert ineffectiveness of trial counsel.
Conclusion
For the reasons set forth above, I recommend that Mr. Franco's petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Allen G. Schwartz, Room 1350, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.