Opinion
99 Civ. 1273 (RCC) (KNF)
June 26, 2002
REPORT AND RECOMMENDATION
I. INTRODUCTION
Before the Court is Jorge Soto's ("Soto" or "petitioner") pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Petitioner alleges that his confinement by New York State is unlawful because there was insufficient evidence offered at trial to prove petitioner's guilt beyond a reasonable doubt. Petitioner also alleges that the sentence imposed on him by the trial court was excessive and should be reduced in the interest of justice.
Respondent opposes petitioner's application for a writ of habeas corpus. He contends that the prosecution proved petitioner's guilt beyond a reasonable doubt and that petitioner's excessive sentence claim is not cognizable on federal habeas corpus review. Therefore, respondent maintains that petitioner's claims lack merit.
For the reasons set forth below, I recommend that the petition be denied.
II. BACKGROUND
On February 23, 1994, at approximately two o'clock in the morning, petitioner and Robert Smith ("Smith") each displayed a razor blade to Matthew Sciulli ("Sciulli") while Sciulli awaited the arrival of a train at the Broadway and Lafayette Street subway station in Manhattan. Thereafter, they relieved Sciulli of his leather jacket, about $9.00 in bills and coins, a packet of condoms and a felt pen. Once petitioner and Smith had taken Sciulli's property, they left him on the subway platform and boarded an F train that had just entered the station. Sciulli alerted the train conductor, John Ahearna ("Ahearn"), that he had been robbed. The conductor stopped the train and contacted the train operator. He asked him to report the robbery and to request police assistance. Next, Ahearn locked the doors to all of the train cars, except the car he had occupied, and went to the station's mezzanine in the vicinity of the stations's token booth. There he met Police Officers Frank Lemma ("Lemma"), Janice Wood ("Wood"), and Joe Caputo ("Caputo"), as well as Lemma's canine partner, Felix.
The police officers and Ahearn traveled to the lower level of the subway station where Sciulli identified his robbers to the officers, as petitioner and Smith sat inside one of the subway cars. Ahearn opened the door to the relevant subway car and allowed the officers to enter. Officers Wood and Lemma approached petitioner and observed a razor blade on the seat where he had been sitting. Lemma then searched petitioner and recovered another razor blade. The officers also retrieved Sciulli's leather jacket from the seat where petitioner had been sitting. They arrested petitioner and Smith and removed them to a Transit Police facility where Sciulli's money, condoms and felt pen were recovered from the two arrestees. Following his arrest, Soto admitted that he had committed the robbery. He explained that he had done so because, in an unrelated incident, someone had cut his neck. Petitioner also maintained that Smith had not participated in the robbery of Sciulli.
On February 25, 1994, a New York County grand jury charged petitioner and his accomplice with one count of robbery in the first degree (N.Y. Penal Law § 160.15[3]) and one count of robbery in the second degree (N.Y. Penal Law § 160.10[1]). On July 18, 1994, the trial court held a combined Huntley and Wade hearing. At the conclusion of the hearing, the trial court found no basis upon which to suppress evidence at petitioner's trial concerning his statements to the police or concerning the pretrial identification of petitioner as one of the perpetrators of the charged crimes.
A hearing held pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967), determines whether procedures used by law enforcement officials to identify a defendant as the perpetrator of a crime were tainted. A hearing held pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965), is used to determine whether a defendant's oral statements to law enforcement officers were made voluntarily.
On October 4, 1994, the case proceeded to trial. On October 11, 1994, a jury returned a verdict against petitioner and Smith finding them guilty of robbery in the first and second degrees. On November 1, 1994, the trial court sentenced petitioner, as a persistent violent felony offender, to twelve years to life imprisonment on the first degree robbery count and eight years to life imprisonment on the second degree robbery count. The trial court directed that the sentences be served concurrently.
Thereafter, petitioner appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. Soto urged that court to upset his conviction because his guilt was not proven beyond a reasonable doubt. In addition, Soto argued that the sentence of twelve years to life imposed upon him should be reduced "in the interest of justice." On September 25, 1997, the Appellate Division affirmed petitioner's conviction unanimously. That court found that the jury's verdict was based on legally sufficient evidence and was not against the weight of the evidence. The Appellate Division also found that the trial court did not abuse its discretion when it imposed sentence on Soto. See People v. Soto, 242 A.D.2d 487, 663 N.Y.S.2d 822 (App.Div. 1st Dep't 1997).
Petitioner applied for leave to appeal to the New York Court of Appeals. On January 27, 1998, that application was denied. See People v. Soto, 91 N.Y.2d 897, 669 N.Y.S.2d 12 (1998).
The instant application for a writ of habeas corpus followed.
III. DISCUSSION
Sufficiency of the Evidence
A habeas corpus petitioner challenging the lawfulness of his or her incarceration based upon a claim of insufficient evidence is entitled to relief only if a court finds that upon the record evidence adduced at the trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-2792 (1979). A habeas corpus court reviewing such a claim must consider the evidence in the light most favorable to the prosecution and make all inferences in its favor. See Jackson, 443 U.S. 319, 99 S.Ct. at 2789. Furthermore, in a case such as this, where a state court has adjudicated the merits of the claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). Also, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
New York's Penal Law defines robbery in the first degree in part as follows:
A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) [c]auses serious physical injury to any person who is not a participant in the crime; or (2) [i]s armed with a deadly weapon; or (3) [u]ses or threatens the immediate use of a dangerous instrument. . . .
New York's Penal Law defines robbery in the second degree in part as follows:
A person is guilty of robbery in the second degree when he forcibly steals property and when: 1) [h]e is aided by another person actually present . . .
Soto contends that his guilt was not proven beyond a reasonable doubt. He maintains that from Sciulli's trial testimony of his February 23, 1994 encounter with petitioner and Smith, the jury could infer that Sciulli had not been the victim of a robbery. However, petitioner has failed to present a plausible account of the events of that day from which an inference other than guilt could be drawn. Moreover, the jury did not rely solely on Sciulli's testimony in reaching its verdict. The jury also relied upon the testimony of officers Wood and Lemma, and the testimony of subway conductor Ahearn.
From that testimony, the jurors learned that Ahearn brought the officers to the locked subway train after being told of the robbery and that the officers recovered some of Sciulli's property from petitioner and his accomplice after their arrest. In addition, the officers recovered property of the victim's from the vicinity in the subway car where petitioner and his accomplice were seated. This testimony, coupled with Sciulli's testimony regarding his identification of the robbers to the police officers shortly after the robbery occurred, was sufficient to permit the jury to convict petitioner. Furthermore, Soto has not presented evidence to the Court that rebuts the presumption of correctness that is accorded a jury's finding of facts. See Bramble v. Smith, No. 96 Civ. 5905, 1998 WL 395265, at *12 (S.D.N.Y. July 15, 1998).
In addition, the Court finds that the Appellate Division applied the standard set forth in Jackson, when it reviewed Soto's conviction and determined that the trial evidence was sufficient for a reasonable jury to return a verdict of guilty against petitioner for the crimes of robbery in the first and second degrees.
Based on the record evidence, the Court is persuaded that the Appellate Division's determination, on petitioner's appeal from his conviction, was neither contrary to nor involved an unreasonable application of clearly established federal law, as determined by the Supreme Court. Accordingly, no basis exists upon which to grant petitioner habeas corpus relief on the instant claim. Similarly, the Court is not persuaded that the Appellate Division's adjudication of Soto's appeal was based on an unreasonable determination of the facts in light of the evidence presented in the trial court. Consequently, petitioner's claim, that he is entitled to habeas corpus relief because he was convicted based upon insufficient evidence, is without merit.
Excessive Sentence
Petitioner claims that his sentence of twelve years to life imprisonment should be reduced "in the interest of justice" because Sciulli was not injured during the February 23, 1994 robbery, and because Sciulli's financial loss was minimal.
"No federal constitutional issue is presented where . . . the sentence [imposed] is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); see also Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir. 1995); Alvarez v. Scully, 833 F. Supp. 1000, 1009 (S.D.N.Y. 1993).
In the case at bar, petitioner was sentenced as a persistent violent felony offender. At the time petitioner was sentenced, New York law required that a persistent violent felony offender receive an indeterminate sentence of imprisonment of not less than ten years; the maximum term of imprisonment the court could impose was life. See N.Y. Penal Law § 70.08(2) and (3).
Since the sentence imposed upon Soto was within the range prescribed by state law, no federal constitutional issue is presented by this claim for which petitioner is entitled to habeas corpus relief. Therefore, the claim should be dismissed.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that petitioner's application for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl Street, Room 1950, New York, N.Y. 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 1007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).