45 F.3d 33 (2nd Cir. 1995), 575, Justice v. Hoke
|Docket Nº:||575, Docket No. 94-2280.|
|Citation:||45 F.3d 33|
|Party Name:||David Kevin JUSTICE, Petitioner-Appellee, v. Robert HOKE, Superintendent, Eastern Correctional Facility, Respondent-Appellant.|
|Case Date:||January 10, 1995|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Oct. 6, 1994.
Andrew C. Fine, New York City (Philip L. Weinstein, Legal Aid Soc., of counsel), for petitioner-appellee.
Nancy F. Talcott, Asst. Dist. Atty., of Kings County, Brooklyn, NY (Charles J. Hynes, Dist. Atty., of Kings County, Roseann B. MacKechnie, Richard T. Faughnan, Asst. Dist. Attys., of Kings County, of counsel), for respondent-appellant.
Before: LUMBARD, FEINBERG, and MAHONEY, Circuit Judges.
MAHONEY, Circuit Judge:
Respondent-appellant Robert Hoke, Superintendent, Eastern Correctional Facility, appeals from a judgment entered May 25, 1994 in the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, that granted a writ of habeas corpus to petitioner-appellee David Kevin Justice. Petitioner had been convicted in the Supreme Court of the State of New York, Kings County, of robbery in the first degree and intimidating a witness in the third degree. See People v. Justice, 172 A.D.2d 851, 569 N.Y.S.2d 456 (2d Dep't), appeal denied, 78 N.Y.2d 923, 573 N.Y.S.2d 476, 577 N.E.2d 1068 (1991). The district court held that the jury charge in the state case was constitutionally deficient "because it failed to convey to the jury its obligation to apply the reasonable doubt standard in determining the facts."
Criminal convictions may issue only upon proof beyond a reasonable doubt of every element of the charged offense. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). However, when reviewing a jury charge for constitutional infirmity, we must consider the challenged portion of the charge not "in artificial isolation," but rather "in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). A constitutional violation occurs only if "[t]here is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard." Victor v. Nebraska, --- U.S. ----, ----, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994).
The challenged portion of the charge appears toward the end of the instructions. Earlier, in the general portion of the charge, the...
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