Aaron v. Kelly, 98 Civ. 0538(LMM).
| Decision Date | 15 September 1999 |
| Docket Number | No. 98 Civ. 0538(LMM).,98 Civ. 0538(LMM). |
| Citation | 65 F.Supp.2d 183 |
| Parties | Charles AARON, Petitioner, v. Walter R. KELLY, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Charles Aaron, Attica, NY, pro se.
Marisa Longo, Asst. Atty. General, New York State Dept. of Law, New York City, for Respondent.
By Report and Recommendation dated August 6, 1999 (the "Report"), Magistrate Judge Grubin recommended that the above petition for a writ of habeas corpus be denied. No timely objections having been filed, and upon consideration of the Report, this Court accepts the recommendation of the Magistrate Judge.
The petition is dismissed.
SO ORDERED.
REPORT AND RECOMMENDATION TO THE HONORABLE LAWRENCE M. McKENNA
Petitioner pro se seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a judgment rendered on October 21, 1993 in the New York State Supreme Court, New York County, convicting him upon a jury verdict of robbery in the second degree, N.Y.Penal Law § 160.10(2)(b), and burglary in the second degree, N.Y.Penal Law § 140.25. After review of the trial record, I recommend that the petition be denied.
Viewing the facts in a light favorable to the state as we must, see, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir.1996); Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929, 109 S.Ct. 316, 102 L.Ed.2d 334 (1988), the evidence at trial established that on February 9, 1993, shortly after 6:00 P.M., petitioner approached Jonas Shantz, a student at Columbia University, and asked for his help in visiting petitioner's sister in Mr. Shantz's dormitory. In order for a nonresident to enter the dormitory, he or she had to provide identification and be signed in by a resident. Mr. Shantz agreed to help petitioner, and they entered the dormitory where petitioner gave a photo identification card to the security guard and Mr. Shantz signed for him. Petitioner then took the elevator to the seventh floor where he entered the empty room of another student, Roslyn Nash, and took her Walkman. As he was leaving the room he encountered Ms. Nash and another student, Charisse Charley. When Ms. Nash asked what petitioner was doing in her room, he said that he was looking for his friend Beverly in room 630. Ms. Nash told him that room 630 was on the sixth floor. When petitioner left, Ms. Nash and Ms. Charley went down to the main floor to alert security because Ms. Nash knew that a friend named Ronald lived in room 630.
Shortly thereafter, David Kim, a student who lived on the fourth floor, entered his room and found petitioner rifling through his desk drawer. When Mr. Kim went to his desk and discovered $24 was missing, he demanded that petitioner return the money. Petitioner at first denied taking any money, but then gave back $14. When Mr. Kim demanded the rest of the money, petitioner forced his way out of the room and started down the stairs. Mr. Kim followed, calling for help. Petitioner put his hand in his pocket and, in a "threatening manner," told Mr. Kim to be quiet. Mr. Kim was "scared to death," thinking petitioner had a gun in his pocket. He stopped calling for help, but continued down the stairs.
When petitioner reached the bottom floor he headed out the door, without picking up his identification at the front desk, still followed by Mr. Kim. Mr. Kim called out to petitioner that he should stop and that he had stolen his money, but petitioner continued on. Mr. Kim, joined by Ms. Nash, followed him for a few blocks, but lost him.
Using the identification card, the police located and arrested petitioner on March 10. Ms. Nash and Messrs. Kim and Shantz each identified him at a lineup that same day and again at trial; Ms. Charley and the security guard also identified him at trial.
On appeal of his convictions, petitioner argued three issues to the Appellate Division: (1) there was insufficient evidence to support the conviction for second degree robbery, which required the displaying of a firearm; (2) there was insufficient evidence to support the conviction for second degree burglary, which required unlawful entry into the dormitory; and (3) the sentence of twelve years to life as a persistent violent felony offender was excessive given that no one was hurt, the amount of money taken was minimal, and the predicate felonies were less serious than many. On November 21, 1996 the Appellate Division affirmed the judgment of conviction in a brief memorandum. 233 A.D.2d 231, 650 N.Y.S.2d 535 (1st Dep't 1996). On February 2, 1997 the Court of Appeals denied leave to appeal the Appellate Division's decision. People v. Aaron, 89 N.Y.2d 983, 656 N.Y.S.2d 742, 678 N.E.2d 1358. On March 21, 1997 petitioner filed a motion under N.Y.Crim.Proc.Law § 440.20 in the Supreme Court, New York County, challenging his sentence as a persistent violent felony offender. The court denied his motion on June 2, 1997.
Petitioner raises here only the first of the issues he raised on his direct appeal, claiming that the State failed to prove beyond a reasonable doubt that he displayed what appeared to be a firearm, a required element of second degree robbery. N.Y.Penal Law § 160.10 states in relevant part:
A person is guilty of robbery in the second degree when he forcibly steals property and when ...
2. In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ...
(b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm....
The section regarding display of a firearm was added to the statute in 1969. Ch. 1012 § 3, 1969 N.Y.Laws 1561, 1561. The New York Court of Appeals has explained the purpose of the amendment as follows:
[T]he Legislature has denominated the display of "what appears to be" a firearm an aggravating factor which increases the degree of the crime over forcible stealing without such a display (Penal Law, § 160.05). The apparent justification for differentiating the situations is the difficulty of proving when no shot was fired that what appeared to be a weapon was in fact a weapon (Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 160.15, p. 205) and the effect upon the victim put in fear of his or her life by the display of what appeared to be a weapon.
People v. Baskerville, 60 N.Y.2d 374, 380-81, 469 N.Y.S.2d 646, 650, 457 N.E.2d 752 (1983).
In People v. Lopez, 73 N.Y.2d 214, 538 N.Y.S.2d 788, 535 N.E.2d 1328 (1989), the New York Court of Appeals explained the statutory scheme and the element of display as follows:
The core requirement for all three degrees of robbery under the Penal Law is proof that the defendant forcibly stole property from another. If, in addition, the defendant or another participant in the crime "[d]isplays what appears to be a pistol, revolver, shotgun, machine gun or other firearm", the offense is elevated to robbery in the first degree. However, if the defendant proves by a preponderance of the evidence that the object displayed "was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury," the crime is reduced to robbery in the second degree....
The statutory scheme serves two primary purposes. First, it recognizes that the additional fear suffered by a robbery victim confronted by what appears to be a firearm aggravates the nature of the offense and warrants additional punishment. Secondly, it recognizes the difficulty of proving that an object displayed during a robbery, which appears to be a firearm capable of causing death or serious injury, was in fact a loaded, operable gun when it was not fired at the scene or recovered afterwards. The statute assumes that the object consciously displayed as a firearm was what it appeared to be and places on the defendant the burden of showing that it was not, in which case he could only be convicted of the lesser, second degree offense.
Although the display element focuses on the fearful impression made on the victim, it is not primarily subjective. The People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display.
However, the object displayed need not closely resemble a firearm or bear a distinctive shape.
73 N.Y.2d at 219-220, 538 N.Y.S.2d at 790-91, 535 N.E.2d 1328 (citations omitted). In Lopez the Court of Appeals upheld a jury verdict finding a display when the defendant had put his hand in his vest as if he had a gun. 73 N.Y.2d at 222, 538 N.Y.S.2d at 792, 535 N.E.2d 1328.
The standard for measuring the sufficiency of the evidence in a federal habeas corpus proceeding is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. 2781 (emphasis in original). See also Herrera v. Collins, 506 U.S. 390, 401-02, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); Lewis v. Jeffers, 497 U.S. 764, 781-82, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990); Malsh v. Hanslmaier, 102 F.3d 69, 70 (2d Cir.1996); Rapetti v. James, 784 F.2d 85, 90 (2d Cir.1986); Arce v. Smith, 710 F.Supp. 920, 933 (S.D.N.Y.), aff'd, 889 F.2d 1271 (2d Cir.1989), cert. denied, 495 U.S. 937, 110 S.Ct. 2185, 109 L.Ed.2d 513 (1990). "As long as any competent evidence went to the factfinders from which they could infer guilt beyond a reasonable doubt, the conviction will stand." McShall v. Henderson, 526 F.Supp. 158, 161 (S.D.N.Y.1981). See also United States v. Adegbite, 877 F.2d 174, 180 (2d Cir.), cert. denied, 493 U.S. 956, 110 S.Ct. 370, 107 L.Ed.2d 356 (1989); Martin v....
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