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recommending denying habeas corpus petition challenging another 1998 Bronx County conviction on the merits
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01 Civ. 8744 (WHP) (JCF)
June 4, 2002
REPORT AND RECOMMENDATION
TO THE HONORABLE WILLIAM H. PAULEY, III, U.S. District Judge:
Theodore Simpson 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. Simpson argues: (1) that his conviction was obtained in violation of his Sixth Amendment right to confrontation; (2) that his Sixth Amendment right to trial by an impartial jury was violated when the trial court allowed the victim to be displayed to the jury; (3) that there was insufficient evidence to prove his guilt beyond a reasonable doubt; and (4) that the trial court illegally sentenced him to consecutive sentences in violation of state law. For the reasons set forth below, I recommend that the petition be denied. Background
Mr. Simpson's co-defendant, Juan Carlos Franco, also brought a habeas corpus proceeding in this Court, raising some of the same claims.Franco v. Walsh, 01 Civ. 8968 (AGS). Mr. Franco's petition was denied on May 6, 2002.
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. Simpson was drinking beer with Juan Carlos Franco, 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. Simpson, Mr. Franco, and Mr. Martinez. (Tr. 1281-84, 1289-90). The petitioner and 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. Simpson, Mr. Franco, 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 all three perpetrators kicked and stomped the victim while Mr. Franco held his feet and Mr. Martinez held the top of his shirt. (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. Simpson admitted his role to at least three witnesses. On the night of the incident, five hours after the attack, Mr. Simpson met Mr. Venson who asked him why he was outside so late. In response, the petitioner confessed to Mr. Venson that he "fucked up White Boy Mike [Mr. Smith]" and that "he might be dead." (Tr. 875). On the morning after the incident, Mr. Simpson went to Shawana Bethea's apartment. He told her that he had just "finished beating up . . . White Boy Mike". (Tr. 1161) Then, about three months later, in late June or early July 1993, Mr. Simpson confessed to Mr. Camacho that he stomped on Mr. Smith's face, hit him with a stick, punched him, and jumped up and down on him. (Tr. 517-19).
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. Simpson was indicted along with Mr. Martinez and Mr. Franco on November 27, 1995. On March 2, 1998, following a jury trial before Justice Robert Straus, the petitioner was convicted of Attempted Murder in the Second 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. Simpson 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. Simpson 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) the convictions were contrary to the weight of the evidence; (2) his constitutional right to confrontation was violated when the trial court allowed a witness to testify to Mr. Franco's unredacted statements implicating the petitioner; (3) it was error to allow 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 December, 2001 ("Swiger Aff."), ¶ 7). On June 6, 2000, the Appellate Division affirmed in all respects. People v. Simpson, 273 A.D.2d 40, 41, 710 N.Y.S.2d 820, 820 (1st Dep't 2000). It held that the verdict was based on sufficient proof and was not against the weight of the evidence, 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 right to confrontation claim was unpreserved and also without merit. Finally, it rejected the argument concerning sentencing. Id. On August 28, 2000, the New York Court of Appeals denied Mr. Simpson's application for leave to appeal. People v. Simpson, 95 N.Y.2d 871, 715 N.Y.S.2d 226 (2000).
Mr. Simpson then filed the instant petition for a writ of habeas corpus.
Discussion
A. Right to Confrontation
The petitioner argues that his conviction was obtained in violation of his Sixth Amendment right to confrontation because Mr. Camacho was permitted to testify to a conversation with Mr. Franco in which Mr. Franco implicitly incriminated Mr. Simpson. This occurred at two points in Mr. Camacho's testimony. (Petition ("Pet."), Exh. B at 1).
On the first occasion, Mr. Camacho testified as follows:
Q. After you observed Theodore Simpson and Cesar Martinez kicking the body, what happened after that?
A. I had left. I had told Juan Carlos [Mr. Franco] that I'll see him on the block.
Q. Did you say anything to Juan Carlos Franco prior to you telling him that?
A. Yeah.
Mr. Horn [Mr. Franco's counsel]: Objection.
The Court: Overruled
A. I told him what happened. And he said that we just beat this nigger up.
(Tr. 485) (emphasis supplied).
In the second instance Mr. Camacho, still recounting Mr. Franco's statements to him, stated the following:
Q. And after Juan Carlos Franco told that [that he would not return the jacket] to White Mike [Mr. Smith] what else, if anything, did Juan Carlos Franco do?
Mr. Horn: Objection. . . .
The Court: Overruled.
A. Nothing. He just hit him over the head with the forty ounce bottle and they just start beating on him.
(Tr. 512) (emphasis supplied).
The petitioner claims that his right to confrontation was violated since the statements that implicated him originated with Mr. Franco who did not testify and therefore was not subject to cross-examination. The respondent contends that this claim is procedurally barred from federal habeas corpus review because the Appellate Division rejected it based on a state procedural ground.
Concerns of comity and federalism require that a federal court respect a state court's decision to reject a federal claim based on "adequate and independent state grounds." Wainwright v. Sykes, 433 U.S. 72, 81-83 (1977); see also Ulster County Court v. Allen, 442 U.S. 140, 154 (1979). Specifically, the Supreme Court has instructed that:
[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In this case, the petitioner did not present to the trial court his claim that he was denied the right to confront Mr. Franco. Mr. Franco's counsel made a general objection to Mr. Camacho's testimony and this objection was not specifically adopted by Mr. Simpson's counsel. (Tr. 485, 512). New York State has a contemporaneous objection rule that bars appeal of issues where the defendant did not lodge an objection at trial. N.Y. Crim. Pro. Law ("CPL") § 470.05(2). Here, the Appellate Division affirmed Mr. Simpson's conviction, ruling that the "[d]efendant's claim that he was incriminated by a nontestifying codefendant's insufficiently redacted statements is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find any error to be harmless." Simpson, 273 A.D.2d at 41, 710 N.Y.S.2d at 820.
Thus, the Appellate Division clearly relied on the contemporaneous objection rule. Additionally, it is of no import that the Court also addressed the merits. The Second Circuit has consistently held that "habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); see also Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding"); Wedra v. Lefevre, 988 F.2d 334, 338-39 (2d Cir. 1993). Moreover, where there has been one reasoned state court decision rejecting a federal claim, it is presumed that later unexplained orders upholding the judgment or rejecting the same claim rests upon the same ground as the reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). Since the New York Court of Appeals denied leave to appeal in this case without explanation, the last reasoned decision is that of the Appellate Division which relied on the procedural default.
However, the procedural bar doctrine only precludes habeas review when the state procedural ground is firmly established and regularly followed by the state courts. See James v. Kentucky, 466 U.S. 341, 348-49 (1984) (no procedural default for federal habeas where state procedural rule was not the "sort of firmly established and regularly followed state practice that can prevent implementation of federal constitutional rights");Ulster County Court, 442 U.S. at 141 (doctrine did not bar habeas review where there was "no support in New York law or the history of this litigation for an inference that the New York courts decided [the] claim on an independent and adequate state procedural ground"); Barr v. City of Columbia, 378 U.S. 146, 149 (1964) (no bar to federal habeas review where state procedural rule was not "strictly or regularly followed"). New York's contemporaneous objection rule is firmly established and regularly followed by state courts, as the Second Circuit has long recognized.Velasquez, 898 F.2d at 9. There is, however, a narrow exception to the rule. Hawkins v. LeFevre, 758 F.2d 866, 873 (2d Cir. 1985) (citing People v. McLucas, 15 N.Y.2d 167, 172, 256 N.Y.S.2d 799, 802 (1965) (no objection necessary to preserve for review deprivation of fundamental constitutional right)). The exception only applies, however, in the "very small class of cases" where the error to which counsel failed to object "results in a trial `at basic variance with the mandate of law prescribed by Constitution or statute.'" People v. Autry, 75 N.Y.2d 836, 839, 552 N.Y.S.2d 908, 909 (1990) (citing People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y.S.2d 584, 586 (1980)). The contemporaneous objection rule is regularly followed for claims similar to the petitioner's. A defendant's claim that he was deprived of his right to confrontation by the admission into evidence of an incriminating statement by a nontestifying codefendant is unpreserved for appellate review when no objection was forthcoming from this defendant, although a codefendant objected to the statement. People v. Sennon, 170 A.D.2d 546, 547, 566 N.Y.S.2d 327, 328 (2d Dep't 1991); see also People v. Buckley, 75 N.Y.2d 843, 846, 552 N.Y.S.2d 912, 914 (1990) (defendant cannot rely on objection of attorney for codefendant to preserve issue for review) Furthermore, a defendant fails to preserve for appellate review his claim that his right of confrontation was violated if he makes only a general objection to the statement of a nontestifying codefendant. See People v. Cardona, 243 A.D.2d 267, 267, 663 N.Y.S.2d 18, 19 (1st Dep't 1997). Here counsel gave no indication of the basis for the objection, and any Confrontation Clause claim would therefore be procedurally barred even if the objection had been made by the petitioner's attorney.
Mr. Simpson may only overcome his procedural default of this claim by demonstrating cause and prejudice or a fundamental miscarriage of justice. A petitioner establishes cause for a default when he shows that "some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Here, Mr. Simpson has made no such showing. Moreover, since a petitioner for federal habeas corpus relief has the burden of demonstrating both cause and prejudice, and since Mr. Simpson has not established cause for procedural default, it need not be determined whether he suffered actual prejudice. Levine v. Commissioner of Correctional Services, 44 F.3d 121, 127 (2d Cir. 1995)
Second, Mr. Simpson has not argued that failure to hear his claim will result in a fundamental miscarriage of justice. Coleman, 502 U.S. at 752. The Supreme Court has stated that a miscarriage of justice occurs in an "extraordinary" case as where a constitutional violation has "probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 322-24 (1995). Mr. Simpson has not presented any new evidence and, "`[t]o be credible,' a claim of actual innocence must be based on reliable evidence not presented at trial." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (citing Schlup, 513 U.S. at 324)). Nor has the petitioner demonstrated a miscarriage of justice by pointing to errors that call into question the validity of the trial itself, such as violation of the right against double jeopardy. See Washington v. James, 996 F.2d 1442, 1450 (2d Cir. 1993).
Since the petitioner cannot show cause for the procedural default and resulting prejudice, nor can he show that a miscarriage of justice would result from the failure to consider the defaulted issue, the claim is procedurally barred and cannot be reviewed. Accordingly, Mr. Simpson's claim that his right to confrontation has been violated must be dismissed without reaching the merits. See Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991).
B. Display of the Victim
The petitioner also argues that he was denied his constitutional rights when the trial court permitted the prosecutor to display the disabled victim to the jury. (Pet., Exh. B, at 1-2). Although Mr. Simpson phrases his contention in terms of his Sixth Amendment right to an impartial jury, this claim is properly analyzed in terms of his right to due process.
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:
Defendant's contentions concerning the exhibition of the injured victim to the jury . . . are indistinguishable from arguments this Court rejected on the codefendant's appeal (People v. Franco, 270 A.D.2d 160), and there is no reason to reach a different result here.Simpson, 273 A.D.2d at 41, 710 N.Y.S.2d at 820.
In People v. Franco, 270 A.D.2d 160, 707 N.Y.S.2d 3 (2d Dep't 2000), the Appellate Division 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.Id. at 160, 707 N.Y.S.2d at 5-6.
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) (quotingDowling 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 (1992); People v. Stevens, 76 N.Y.2d 833, 835, 560 N.Y.S.2d 119, 120 (1990). The same reasoning applies to display of the victim himself.
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. Simpson 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. Simpson'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 (quotingEstelle 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.
C. Sufficiency of the Evidence
The petitioner claims that his conviction was obtained in violation of his right to due process because it was not supported by sufficient evidence. More specifically, Mr. Simpson contends that the prosecution failed to prove his guilt beyond a reasonable doubt because there was no physical evidence presented at trial that directly linked him to the crimes charged in the indictment and because the only evidence presented against him came from four witnesses who lack credibility. (Pet., Exh. B at 2).
The standard for habeas corpus review of the sufficiency of 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).
A federal judge reviewing a sufficiency of evidence claim does not make an independent determination as to whether the evidence demonstrates guilt beyond a reasonable doubt. Jackson, 443 U.S. at 318-19. Rather, the judge must construe the evidence in the light most favorable to the prosecution and defer to the jury's assessment of witness' credibility.Id. at 319; see also Herrera v. Collins, 506 U.S. 390, 402 (1993) (Jackson inquiry asks only whether decision to convict was rational, not whether it was correct).
The petitioner argues that the four witnesses who testified against him were not credible. First, he contends that Nelson Camacho's credibility is suspect because he testified at trial that he witnessed the beating and that he saw Mr. Simpson dragging the victim's body out of the building (Tr. 478, 485, 525, 530-31, 542, 545, 613-15, 693-94), although he never mentioned the petitioner to the investigating detectives, nor did he name Mr. Simpson as one of the assailants when he testified before the grand jury. Mr. Camacho first testified that he did not mention the petitioner before the grand jury because the prosecutor had asked him only about Mr. Franco and Mr. Martinez. (Tr. 564). He later testified that he did not know why he failed to name Mr. Simpson before the grand jury. (Tr. 565). Thus, the jury had a full opportunity to explore any inconsistency between Mr. Camacho's testimony at trial and at the grand jury, and the court must defer to the jury's resolution of any conflicts in the testimony. Jackson, 443 U.S. at 319; United States v. LeRoy, 687 F.2d 610, 616 (2d Cir. 1982); see also Herrera, 506 U.S. at 401.
The petitioner also contends that Mr. Camacho's testimony was the direct result of a bargain made with the prosecutor's office. However, Mr. Camacho testified to the deal he made with the prosecution in exchange for his testimony. Therefore, when they made their decision, the jurors had the information needed to fulfill their responsibility of determining the witness' credibility. See United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993); United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989) The jury heard the evidence and was free to credit it or not.
Second, James Venson testified that the petitioner made incriminating admissions to him in the lobby of 900 Bronx Park South on the night of the incident, March 4. The petitioner contends that Mr. Venson's testimony was not believable because hospital records indicated that this witness was hospitalized on that date. It is true that Mr. Venson's medical records indicated that he was admitted to Montefiore Hospital on February 19, 1993 and discharged early on March 5, 1993. (Tr. 1778-79). However, Mr. Venson testified that he was not actually hospitalized on March 4 or 5. (Tr. 1064-65). Moreover, Ms. Bethea testified that Mr. Venson was indeed in the lobby of 900 Bronx Park South on the night of March 4 (Tr. 1150, 1194, 1199, 1208), thereby supplying evidence that the medical records were incorrect. The jury was entitled to weigh the conflicting evidence and to credit the testimony of the witnesses.
Third, on the morning of March 5, 1993, Mr. Simpson admitted to Ms. Bethea that he had just finished beating up Mr. Smith. She testified about this admission although she had not come forward with the information for four years. The petitioner argues that she broke her silence and testified against him to help her boyfriend who was imprisoned the week before trial. However, Ms. Bethea testified that she did not believe that she would help her boyfriend by testifying. (Tr. 1180). Moreover, she explained that she was testifying at trial because she had been subpoenaed to do so. (Tr. 1180). She and the petitioner had known each other for six years (Tr. 1171), and had been close friends. (Tr. 1144). Thus it was not surprising that she did not voluntarily reveal what she had been told until she was subpoenaed. In any event, the jury was fully apprised of this credibility issue.
Fourth, Julio Santiago testified at trial that he heard Mr. Simpson say, "Let's kill [Mr. Smith] right here," and that he later saw the petitioner kicking the victim. The petitioner claims that Mr. Santiago's testimony is not believable for two reasons. First, he contends that Mr. Santiago's statement that he could not identify voices in the hallway on the night of March 4 is inconsistent with his subsequent statement that he later recognized Mr. Simpson's voice. It is true that Mr. Santiago testified that he heard a lot of yelling in the hallway in the early part of the evening, and that he could not identify the voices. He explained that he was in his bedroom, separated by two closed doors from the hallway, with the television on and the volume up. (Tr. 1347) Between 11 p.m. and midnight, Mr. Santiago heard noises from the robbery and he went to his living room to quiet his dog. From the living room, he heard the petitioner saying that they should kill Mr. Smith. This was entirely plausible since Mr. Santiago could better hear the voices in the hallway when he was in his living room without the noise from the television. Moreover, he had known Mr. Simpson for years, and thus the petitioner's voice was familiar to him. Only where the witness testifies as to "`facts that [he or she] could not have possibly observed or events that could not have occurred under the laws of nature'" will that testimony be considered incredible as a matter of law. United States v. Palacios, 612 F.2d 972, 973 (5th Cir. 1980) (quoting United States v. Garner, 581 F.2d 481, 485 (5th Cir. 1978) (internal quotation omitted)); see also Hawkins, 758 F.2d at 868-69, 871 n. 7 (2d Cir. 1985).
Mr. Simpson further asserts that Mr. Santiago's testimony that he saw the petitioner beating Mr. Smith is not credible because, when he was interviewed by detectives on March 5, 1993, Mr. Santiago stated that he had not seen anything. However, Mr. Santiago testified that, on the morning after the incident, he told the police that he had not seen anything because he was "afraid of the building." (Tr. 1460). His fear was easily understandable since he had witnessed the three assailants beating a young man almost to death and learned from Mr. Franco's confession to him that the beating was inflicted merely because Mr. Smith made the mistake of trying to sell a torn jacket. Therefore his reasons for not coming forward earlier were not so incredible that no reasonable juror could believe him. See United States v. Shulman, 624 F.2d 384, 388 (2d Cir. 1980).
In sum, since all the petitioner's arguments relate to credibility and the jury is "`exclusively responsible for determining a witness' credibility,'" Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (quoting Strauss, 999 F.2d at 696), his arguments are unavailing.
Further, Mr. Simpson argues that there was no physical evidence presented at trial that directly linked him to the crimes charged in the indictment. This is true, but hardly dispositive. Two eyewitnesses, Mr. Camacho and Mr. Santiago, testified that they saw the petitioner beating Mr. Smith. (Tr. 478, 485, 525, 530-31, 542, 545, 613-15, 693-94, 1281-84, 1289-90). Ms. Bethea, Mr. Venson, and Mr. Camacho all testified to statements by the petitioner in which he admitted he had beaten the victim. Since the jury had a full opportunity to explore the credibility of the witnesses' testimony and the witnesses testified consistently with each other, the evidence elicited at trial amply supported a guilty verdict. Therefore, even if there was no direct physical evidence, there is simply no basis for disturbing the jury's verdict.
D. Consecutive Sentences
The petitioner next argues that the trial court illegally sentenced him to consecutive sentences in violation of state law. (Pet., Exh. B at 3).
State sentencing decisions are not normally cognizable on habeas corpus review because they present questions of state law. See Jerrel v. Keane, No. 93 Civ. 7746, 1995 WL 653369, at *3 (S.D.N.Y. Nov. 7, 1995); Windley v. Rilely, No. 90 Civ. 7349, 1991 WL 60343, at *2 (S.D.N.Y. April 11, 1991). Habeas relief is available, however, if the sentence is outside the range prescribed by state statutory law. See Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir. 1995); Costello v. Attorney General of the State of New York, No. 98 Civ. 0542, 1999 WL 689335, at *3 (S.D.N.Y. Aug. 31, 1999).
Substantial deference must be given to decisions of the sentencing court, which has "`broad discretion to mete out penalties at or below the statutory maximum.'" United States v. Persico, 853 F.2d 134, 138 (2d Cir. 1988) (quoting United States v. Bonnet, 769 F.2d 68, 71 (2d Cir. 1985)). This discretion includes the determination of whether sentences will be imposed concurrently or consecutively. United States v. Hui, 83 F.3d 592, 594 (2d Cir. 1996).
Under New York law, "[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently." N.Y. Penal Law § 70.25(2). Substantial discretion is left to the trial court in deciding when "two or more offenses" constitute a "single act or omission," and when consecutive sentences are therefore appropriate. See People v. Ramirez, 89 N.Y.2d 444, 450-51, 654 N.Y.S.2d 998, 1000-01 (1996).
In this case, the petitioner argues that his conviction for attempted murder was predicated upon the same acts that constituted the physical injury element of the first degree robbery. However, the offenses for which Mr. Simpson was convicted arose from two distinct and separate acts. See People v. Martinez, 138 A.D.2d 251, 252, 525 N.Y.S.2d 211, 212 (1st Dep't 1988) (robbery and burglary and attempted murder emanated from separate successive acts when the attempted murder occurred after the robbery had been completed). In this case, the assailants robbed Mr. Smith first and, after that crime was completed, they attempted to murder him. Indeed, after the robbery was clearly complete, Mr. Simpson and the codefendants dragged the victim to a different location where they attempted to kick and stomp him to death. Here, as in Martinez, the two offenses were not committed through a single act; the attempted murder was not part of the robbery, but was an "`unnecessary afterthought.'"People v. Smiley, 121 A.D.2d 274, 276, 503 N.Y.S.2d 49, 51 (1st Dep't 1986) (quoting People v. Tanner, 30 N.Y.2d 102, 108, 331 N.Y.S.2d 1, 6 (1972).
Moreover, the distinctiveness of the crimes was apparent from the court's instructions. Justice Strauss instructed the jurors that to convict the defendants of first-degree robbery, they had to find beyond a reasonable doubt that the defendants forcibly stole a jacket from Mr. Smith and that during the commission of the forcible stealing or in immediate flight therefrom, they used or attempted the immediate use of a dangerous instrument, specifically a bottle. (Tr. 2138). Regarding the attempted murder count, the trial court instructed the jurors that to convict the petitioner of attempted murder, they had to find beyond a reasonable doubt that the defendants
intended to cause the death of Michael Smith and . . . engaged in conduct directed toward, intending to bring about the commission of murder in the second degree in that they repeatedly kicked and or stomped Michael Smith about the head, face and body after he was struck with a bottle.
(Tr. 2128). Thus the court instructed that it was the kicking and stomping — if the jury found they occurred — which would evidence intent to murder. The single act of striking the victim with the bottle, which constituted a material element of first-degree robbery, did not constitute, in itself, the offense of attempted murder.
Therefore, because the robbery and the attempted murder were not committed through a single act, and no single act constituted, in itself, one of the offenses and also a material element of the other, the trial court's decision to impose consecutive rather than concurrent sentences was proper and was within its discretion.
Because the petitioner's consecutive sentences for the attempted murder conviction and the robbery convictions were permissible under New York law, the petitioner's claim that the state court illegally sentenced him to consecutive sentences must be rejected.
Conclusion
For the reasons set forth above, I recommend that Mr. Simpson'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 William H. Pauley III, Room 2210, 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.