Opinion
Case No. 98-CV-4711 (FB)
November 21, 2000
JIN HAN, ESQ., Han Associates, New York, NY, For the Petitioner
CHARLES J. HYNES, ESQ. District Attorney, Kings County By: ROSEANN B. MacKECHNIE, ESQ., ANN BORDLEY, ESQ., KAREN MARCUS, ESQ. Brooklyn, New York, For the Respondent
MEMORANDUM AND ORDER
Following a trial in Supreme Court, Kings County, a jury convicted petitioner David Kae ("Kae") of Murder in the Second Degree (N.Y. Penal Law § 125.25 [3]) and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02[4]). Kae now seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 alleging that (1) his conviction was unconstitutional because it was not supported by legally sufficient evidence; (2) he was deprived of due process when, over objection, evidence of uncharged crimes was admitted against him; (3) he was deprived of due process and his Sixth Amendment rights were violated when the prosecution changed the theory of its case during summation; (4) he was deprived of due process because he did not have effective assistance of either trial or appellate counsel; and (5) his sentence was based on unreliable evidence of uncharged conduct. For the reasons set forth below, the petition is denied.
BACKGROUND
On July 10, 1992, an armed robbery occurred at a Brooklyn, New York jewelry store. During the course of the robbery, Efrim Katz ("Katz"), a store employee, was shot. Katz died of a gunshot wound to the neck later that day. On July 27, 1992, Kae sold a .357-caliber revolver to a Special Agent from the Bureau of Alcohol, Tobacco and Firearms ("BATF"). In the course of arranging this transaction, Kae made statements implicating himself in Katz's murder. The weapon Kae sold was later determined to have been the gun used to shoot Katz.
Kae was charged with Murder in the Second Degree, Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03), Criminal Possession of a Weapon in the Third Degree; and Criminal Sale of a Firearm in the Third Degree (N.Y. Penal Law § 265.11 [2]).
At trial, the prosecutor called David Ballestra ("Ballestra"), who had been working in a pawn shop adjoining the jewelry store on the day of the shooting. Ballestra testified that he was talking to Katz in the jewelry store shortly before the shooting, when three black men entered. The men left, and Ballestra returned to the pawn shop. Several minutes after he left the jewelry store, Ballestra heard a loud pop, and then heard Katz yell, "those three black bastards came back and shot me." When Ballestra left the pawn shop to investigate, he saw the same three black men fleeing the jewelry store. Ballestra's testimony did not describe any of the perpetrators as being Asian or otherwise matching Kae's description. The prosecution next called Police Sergeant Tadgh McNamee who testified that he observed Kae with three black men in the vicinity of the jewelry store shortly before the robbery. The prosecutor later called Vincent Zeno ("Zeno"). Zeno was a friend of Kae's and, unknown to him, a BATF informant. Zeno admitted that he had a record of multiple arrests and convictions relating to drugs and weapons, had signed a cooperation agreement in which he had agreed to provide information regarding illegal weapons sales to the BATF as part of a plea bargain and had received cash from the BATF in exchange for information relating to illegal gun sales. Zeno testified that Kae showed him a .357-caliber revolver that Kae said he wanted to sell. Zeno said that he introduced Kae to another BATF informant who arranged for Kae to sell the gun to the BATF Special Agent. Zeno further testified that Kae subsequently admitted to him that he had shot someone in the neck using a .357-caliber gun during a robbery at a Brooklyn jewelry store. Subsequently, Police Detective Thomas DeFence read statements given by Kae following his arrest wherein he admitted driving three friends — Buster, Claude and Shane — to the jewelry store, that he "knew what they were doing," and that he had agreed to wait for them while they were in the store. In these statements, Kae further stated that while he waited in front of the store, Shane asked Katz for a ring, and then shot him with a .357 Magnum (the same weapon Kae would eventually sell to the BATF agent). Kae then admitted driving away from the scene, and stopping to pick up Buster, Claude and Shane about half a block away.
Also admitted at trial, was evidence that Kae had committed uncharged crimes. Specifically, that Kae intended to sell apparently stolen jewelry; that he was present when Claude and Buster discussed the sale of apparently stolen jewelry; and that he accompanied Buster in an attempt to purchase firearms.
During summation, the prosecutor asserted for the first time that Kae was not merely an accessory to the crime, but that "Kae was the one who pulled the trigger." Defense counsel objected to the prosecution's alternative theories, arguing that they could not "have it both ways, " and should be bound by the new theory. The court, however, rejected this application, stating that the prosecution was permitted to argue more than one theory.
Following his conviction for Murder in the Second Degree and Criminal Possession of a Weapon in the Third Degree, the court sentenced Kae to consecutive terms of imprisonment of twenty years to life and two and one-third to seven years. In passing sentence, the court first imposed twenty years to life on the murder charge, then remarked, "And I am also sentencing to a minimum of two and one-third to seven years imprisonment for selling that murder weapon to someone else in the community and boasting that he could provide other guns. I am running those sentences consecutively."
Kae appealed to the Appellate Division, Second Department. Kae's appeal raised the following issues: (1) that the verdict was legally insufficient because Zeno's testimony was incredible and unworthy of belief as a matter of law; (2) that he was denied a fair trial when the court allowed the prosecution to introduce evidence of highly prejudicial uncharged crimes; and (3) that the court improperly permitted the prosecution to change its theory of the case during summation. On November 20, 1995, the Appellate Division affirmed the judgment of conviction. See People v. Kae, 221 A.D.2d 565, 634 N.Y.S.2d 407 (2d Dep't 1995). The court concluded that Kae's sufficiency claim was unpreserved for review because he had failed to object on that ground at trial and, in any event, the evidence was sufficient to establish guilt beyond a reasonable doubt. See id. The court summarily rejected his other contentions as being without merit. See id. Kae thereafter sought leave to appeal to the Court of Appeals on the same grounds. See Reply Mem. of Law and Exs. in Supp. of Pet.'s Writ of Habeas Corpus at 14. On February 20, 1996, leave to appeal was denied. See People v. Kae, 87 N.Y.2d 974, 642 N.Y.S.2d 204 (N.Y. 1996).
Subsequently, Kae moved in the Supreme Court to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. Law § 440, on the grounds that (1) he was deprived of the right to be present at a Sandoval hearing; (2) he received ineffective assistance of trial counsel because counsel (a) failed to move to preclude the admissions Kae made to Zeno on the ground that they were not properly noticed, (b) withdrew his motion to suppress statements Kae made to the police after Kae's request to speak with an attorney had been denied, (c) failed to produce photographs of the area in front of the jewelry store, (d) withdrew his objection to testimony by an undercover officer concerning Kae's offer sell hand grenades to the officer, and (e) failed to request a limiting instruction regarding uncharged crimes; and (3) his sentence was illegal because it was based on uncharged crimes. The court denied the motion, holding (1) that the record established that the hearing on Kae's Sandoval application was conducted entirely in his presence; (2) that Kae's trial counsel "vigorously attacked the prosecution's case and presented a cogent defense;" and (3) that Kae received a legal sentence. People v. Kae, No. 11055/92 (N.Y.Sup.Ct., Kings Co., Aug. 27, 1997). On December 19, 1997, the Appellate Division, Second Department denied Kae leave to appeal. Following this decision, Kae, pro se, petitioned the Appellate Division, Second Department for a writ of error coram nobis, alleging that he had ineffective assistance of appellate counsel on his direct appeal because counsel did not effectively present claims concerning (1) his right to be present at the Sandoval hearing; (2) sufficiency of the evidence; (3) evidence of uncharged crimes; (4) ineffective assistance of trial counsel; and (5) legality of his sentence. The Appellate Division held that Kae had failed to establish that he had been denied effective assistance of appellate counsel. See People v. Kae, 251 A.D.2d 598, 673 N.Y.S.2d 617 (2d Dep't 1998).
Both parties mention the Appellate Division's denial in their statements of facts, but do not cite a written decision. A denial of a § 440 motion is appealable only by permission of the Appellate Division. See N.Y. Crim. Pro. Law § 450.15 (McKinney 1994). Kae, therefore, has exhausted these claims for purposes of federal habeas review.
"common law coram nobis proceeding brought in the proper appellate court is the only available and appropriate procedure and forum to review a claim of ineffective assistance of appellate counsel . . . ." People v. Bachert, 69 N.Y.2d 593, 595-96, 516 N.Y.S.2d 623, 624 (N Y 1987). If denied, there is no appellate review. See id., 69 N.Y.2d at 600.
DISCUSSION
A. Sufficiency of the EvidenceKae first claims that the evidence at trial was legally insufficient to prove that he acted in concert with the perpetrators to commit felony murder. As noted, supra, this claim was rejected by the Appellate Division on Kae's direct appeal because the court found the claim unpreserved for appellate review. People v. Kae, 251 A.D.2d 598, 673 N.Y.S.2d 617 (2d Dep't 1998).
When a state court has declined to address a prisoner's federal claim because the prisoner has failed to satisfy an adequate and independent state procedural requirement, federal habeas review of that claim is barred for reasons of federalism and comity. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). An exception exists only when the petitioner can demonstrate both good cause for and actual prejudice resulting from his noncompliance with the state's procedural rule. See Engle v. Isaac, 456 U.S. 107, 129 (1982). However, [s]tate courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims." Hathorn v. Lovorn, 457 U.S. 255, 263 (1982). New York's contemporaneous objection rule, N.Y. Crim. Proc. Law § 470.05(2), in its general application, is such an adequate and independent state ground for decision that precludes federal habeas review. See Garcia v. Lewis, 188 F.3d 71, 77-79 (2d Cir. 1999). That the state court goes on to find, in the alternative, that a petitioner's claim fails on the merits as well, does not lift the bar created by the petitioner's failure to comply with such a procedural rule. See Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (citing Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989)).
Here, the Appellate Division held that Kae's sufficiency claim was unpreserved for appellate review because he had not complied with N.Y. Crim. Proc. Law. § 470.05[2]. The mere fact of the Appellate Division's alternative finding that the evidence presented at trial established Kae's guilt beyond a reasonable doubt does not allow this Court to reach the merits of his habeas claim. Because Kae has failed to show cause for his default and prejudice from it, this Court must conclude that federal habeas review is foreclosed.
Even if this Court were to reach the merits of this claim, the Court would reject it. The evidence established that Kae took an active role in the jewelry store robbery that culminated in Katz's murder, and later sold the murder weapon to an undercover agent. Reviewing the evidence in the light most favorable to the prosecution, as a federal habeas court must, see Wright v. West, 505 U.S. 277, 296 (1992), the Court finds that there was ample evidence supporting Kae's conviction.
B. Admission of Uncharged Crimes
Kae asserts that he was denied due process because the prosecution was permitted to introduce evidence that Kae had offered to sell jewelry that was apparently stolen, as well as various weapons, ammunition and hand grenades. Kae further claims that the prosecution was permitted to introduce testimony that Kae knew a third person, Buster, who supposedly sold firearms to the BATF agent. State court rulings on evidentiary matters are matters of state law and "are not reviewable by a habeas court unless the errors alleged are so prejudicial as to constitute fundamental unfairness." Warren v. Miller, 478 F. Supp.2d 120, 135 (E.D.N.Y. 2000) (citing Rosario v. Kuhlman, 839 F.2d 918, 924-25 2d 1988); see also Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983) ("Erroneous evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where petitioner can show that the error deprived [him] of a fundamentally fair trial"). Specifically, "[t]he erroneous admission of evidence rises to a deprivation of due process under the Fourteenth Amendment only if the evidence in question "was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'" Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985)). As a general rule, under New York law, evidence of uncharged crimes is not admissible if offered only to raise an inference that a defendant is of a criminal disposition. See People v. Allweiss, 48 N.Y.2d 40, 46, 421 N.Y.S.2d 341, 344 (N.Y. 1979). It is well established, however, that evidence of uncharged crimes may be admitted to establish the intent element of a crime. See People v. Alvino, 71 N.Y.2d 233, 245, 525 N.Y.S.2d 7, 11 (N.Y. 1987).
Kae's involvement in the sale of stolen jewelry and firearms was highly probative given the facts of this case. Furthermore, Kae has not demonstrated that this evidence "was sufficiently material to provide the basis for his conviction or to remove a reasonable doubt that would have existed on the record without it." See Collins, 755 F.2d at 19.
C. Prosecution Changed Theory of Case During Summation
A writ of habeas corpus will not issue on the basis of prosecutorial misconduct during summation unless such conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To prevail, the petitioner "must demonstrate that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). Furthermore, the New York Court of Appeals held in People v. Whatley, 69 N.Y.2d 784, 785, 513 N.Y.S.2d 110, 111 (N Y 1987), that it was not improper to instruct the jury that it could find the defendant guilty of murder either as an accessory or as a principal when a defendant had been indicted for murder under an acting in concert theory, and there is evidence which would support a finding that defendant was either the shooter or the driver of the getaway car.
In Kae's case, there was evidence from which a the jury could have concluded that Kae was either the shooter or the driver of the getaway car, or both. As such, Kae has not shown that the prosecutor's summation, suggesting that Kae was the shooter rather than merely an accessory, gave rise to the type of fundamental unfairness warranting habeas relief.
D. Ineffective Assistance of Counsel
Kae contends that he received ineffective assistance of both trial and appellate counsel. Respondent, however, contends that Kae's ineffective assistance of trial counsel claim is procedurally barred from habeas review. Kae's ineffective assistance of trail counsel claim was denied by the Supreme Court, Kings County on Kae's § 440 motion because it could have been raised on direct appeal. That the state court also found the merits of Kae's claim to be unavailing is of no moment as far this Court's habeas review is concerned. Furthermore, Kae has not demonstrated good cause or actual prejudice such as would forgive his noncompliance with the state's procedural rule. See Harris, 489 U.S. at 264 n. 10.
Even if this Court were to reach the merits of Kae's claim it would conclude that he has failed to satisfy the "unreasonable error" prong of the Strickland test which requires Kae to establish not only that counsel erred, but that the errors were not within the realm of reasonableness under the professional norms prevailing at the time of trial. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The record reflects that trial counsel made appropriate pre-trial motions, argued to suppress evidence, vigorously cross-examined prosecution witnesses, and made forceful opening and closing statements.
The Strickland test for establishing a claim of ineffective assistance of counsel applies to appellate counsel as well as trial counsel. Moreover, appellate counsel cannot be considered ineffective for making a strategic decision to abandon weaker arguments and, instead, develop only those arguments more likely to succeed. See Jones v. Barnes, 463 U.S. 745, 753 (1983) ("A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound of strong and weak contentions"). The Court's examination of the fifty-three page appellate brief filed on Kae's behalf indicates that this strategy was effectively adopted by his appellate counsel. Kae's claim, therefore fails to satisfy the "unreasonable error" prong of the Strickland test.
E. Enhanced Sentence Based on Uncharged Conduct
Finally, Kae maintains that he was denied due process because the sentencing court based his sentence on allegations of uncharged conduct. It is well established, however, that "no constitutional issue is presented for habeas corpus relief where a sentence imposed falls within the range prescribed by state statutory law." Alvarez v. Scully, 833 F. Supp. 1000, 1009 (S.D.N.Y. 1993) (citing White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)). Under New York law, second degree murder is a Class A-I felony, and carries a minimum sentence of fifteen years to life, with a maximum of twenty-five years to life. See N.Y. Penal Law §§ 70.00, 125.25 (McKinney 1998). Third degree criminal possession of a weapon is a Class D felony, and carries a minimum sentence of one to two and one-third years (for crimes committed before October 1, 1995), with a maximum of three to seven years. See N.Y. Penal Law §§ 70.00, 265.02 (McKinney 1998 and 1989). Furthermore, New York law gives the sentencing court discretion to impose consecutive terms of imprisonment for separate and distinct acts which violate more than one section of the New York Penal Law, even if such acts are part of a continuous course of activity. See N.Y. Penal Law § 70.25(1)
In this case, the sentencing court imposed a sentence of consecutive terms of twenty years to life, and two and one-third to seven years — less than the maximum allowable sentence. The crux of Kae's due process claim — that he was sentenced to consecutive terms because he had boasted to the BATF's Special Agent that he could obtain other guns for sale — is unavailing. The discretion granted the sentencing court entitled it to impose consecutive sentences.
CONCLUSION
Kae's habeas corpus petition is denied. The Court determines that a certificate of appealability will not be issued since Kae has failed to make a substantial showing of the denial of a federal right. See 28 U.S.C. § 2253 (c)(2).